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NAVY | DRB | 2014_Navy | ND1401360
Original file (ND1401360.rtf) Auto-classification: Denied

ex-GM3, USN

Current Discharge and Applicant’s Request
Application Received: 20140709
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:         USNR (DEP)        19970425 - 19970826     Active:   19970827 - 20010826
[Remainder of prior service periods are NFIR; therefore, the NDRB was unable to determine complete periods of service. ]                             
Period of Service Under Review:

Date of Current Enlistment: NFIR         Age: UNABLE TO DETERMINE
Period of E nlistment :
Date of Discharge: 20121130      Highest Rank/Rate: GM2
Length of Service:
         Inactive:        UNABLE TO DETERMINE
         Active   UNABLE TO DETERMINE
Education Level:        AFQT: 79
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.66

Awards and Decorations (per DD 214):      Rifle Pistol NR SSDR CGMTC(with “O” Device) EE WS

Periods of UA:

NJP :

SCM:

SPCM:

- 20121106 :      Article (False official statements ) 2 specifications
         Specification 1: On or about 20120111, w ith intent to deceive, sign an official record, Defense Travel System (DTS) Voucher, which record was false in that it state about $ 1,188 .00 in lodging expenses were incurred , and was then by SNM to be so false .
         Specification 2: On or about 20120123, with intent to deceive, sign an official record, DTS Voucher, which record was false in that it state about $1,526.00 in lodging expenses were incurred, and was then by SNM to be so false.
         Article (Larceny and wrongful appropriation) 3 specifications
         Specification 1: On or about 20120109, steal United States currency, of a value of about $317.00, military property of the United States.
         Specification 2: On or about 20120117, steal United States currency, of a value of about $1,030.00, military property of the United States.
         Specification 3: On or about 20120323 , steal United States currency, of a value of about $ 1,526 .00, military property of the United States.
         Sentence: REPRIMANDED FINE OF $1,500.00
         [CA approved and ordered executed except for the part of the sentence extending to the letter of reprimand.]
CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, HUMANITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVAL RESERVE SEA SERVICE DEPLOYMENT RIBBON, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, COAST GUARD MERITORIOUS TEAM COMMENDATION WITH "O" DEVICE, EXPERT PISTOL SHOT MEDAL, EXPERT RIFLEMAN MEDAL, ENLISTED EXPEDITIONARY WARFARE SPECIALIST INSIGNIA. ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 36, effective 18 August 2011 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 107 and 121 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends his discharge characterization is inequitable because it is inconsistent with his total service conduct and performance.
2.       The Applicant contends his discharge was improper because it was not approved by the appropriate authority.
3. The Applicant contends his discharge was improper because it was not part of the sentence adjudged at the court-martial.

Decision

Date: 2014 1106             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the UCMJ: Article 107 ( False official statements , 2 specifications ) and Article 121 (Larceny and wrongful appropriation, 3 specifications) . Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualif ied counsel and submit a written statement . The Applicant waived right to request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable because it is inconsistent with his total service conduct and performance. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Despite a service member’s performance or time in service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. The Applicant was found guilty for violation of Articles 107 and 121. Violation of Articles 107 and 121 are such offenses that usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was not sentenced to a punitive dischar ge, but received the more lenient administrative discharge upon his special court-martial . The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper because it was not approved by the appropriate authority. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his discharge was improper. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The commanding officer’s recommendation for separation is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper because it was not part of the sentence adjudged at the court-martial. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. In accordance with the MILPERSMAN, service members may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation . Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right in his pretrial agreement , thus accepting the discharge recommended in the letter of notification. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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