ex-AEAN, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:      CONVENIENCE OF THE GOVERNMENT
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20030114 - 20030910     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20030911    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20060608     Highest Rank/Rate: AEAN
Length of Service: Year(s) Month(s) 28 Day(s)
Education Level:        AFQT: 46
Evaluation Marks:        Performance: 3.5 (2)     Behavior: 3.5 (2)       OTA: 3.34

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:     SCM:     SPCM:

CC:

- 20060324:      Offense: Theft
         Sentence: 40 hours of community service, report to jail no later than 3:00 pm on 20060324 [duration not found in record], prohibition from entering the Home Depot, and court ordered restitution, fines, and fees totaling $415.00. The imposition of the sentence was suspended and granted the Applicant a two year conditional release probation under the supervision of the court.

Retention Warning Counseling:

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until 10 June 2008, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 121.

C. 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.

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

Applicant’s Issues

1.       The Applicant believes he should be granted a change in Re-Enlistment Code by this board.
2.       The Applicant contends his discharge was too severe compared with today’s standards and is too harsh compared to what others have received for the same offense.
3.       The Applicant contends that the civil charges that caused his discharge were overturned and dismissed.
4.       The Applicant contends his in-service conduct warrants consideration for an upgrade.
5.       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date: 20141230            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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. The 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 civil conviction resulting from his “no contest” plea to the charge of theft in the Superior Court of Hanford, California. Based on the civilian conviction of the Applicant in the Superior Court of Hanford, California, command administratively processed for separation. When twice notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant signed and acknowledged the first notification and refused to sign the second notification. The second notification added the Commission of a Serious Offense to his original notification of Civilian Conviction as a reason for separation. The Applicant was present at his administrative board and presented his case with legal counsel against the specifications as presented in his second notification. The Administrative separation board unanimously found that the preponderance of the evidence supported the allegations surrounding his civil conviction and that separation was warranted with a General (Under Honorable Conditions) characterization.

: (Nondecisional) The Applicant believes he should be granted a change in Re-Enlistment Code by this board. 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.

: (Decisional) () . The Applicant contends his discharge was too severe compared with today’s standards and is too harsh compared to what others have received for the same offense. The Applicant contends his discharge was inequitable because another servicemember was punished less harshly for similar misconduct. 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. A preponderance of the evidence reviewed supports the conclusion that the Applicant was convicted by a civilian court for theft as a result of his “no contest” plea, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that the civil charges that caused his discharge were overturned and dismissed. A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The evidence of record shows the Applicant knowingly and willingly plead “no contest” to the charges brought against him in the Superior Court of Hanford, California. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. Additionally, the Applicant fully exercised his rights to an administrative separation board and, based on the evidence presented, the board unanimously found that the preponderance of the evidence supported the allegations surrounding his civil conviction.

In reviewing cases, the NDRB is not bound by decisions of the civilian courts to reduce or dismiss charges subsequent to the Applicant’s discharge. Having charges dismissed after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge. The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so. Furthermore, the NDRB noted that the evidence of record concerning his civilian conviction in March 2006 only noted one count of theft and listed a two year probationary period with a suspended sentence. The June 2013 document the Applicant submitted for this board’s consideration listed additional counts not found in his 2006 civil conviction. This document specified that counts one, three, four, and five were dismissed, but made no mention of the disposition of a count two. Given the inconsistencies in the documentation provided and the lack of explanation provided by the Applicant, the board could not conclude that the civil conviction that resulted in his separation was the same civil conviction that had four of apparently five charges dismissed. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.

4: (Decisional) () . The Applicant contends his in-service conduct warrants consideration for an upgrade. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

5: (Decisional) () . The Applicant contends his post-service conduct is worthy of an upgrade. The NDRB considers 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. The Applicant provided a documentation showing he had four of presumably five civil charges dismissed from a prior civil conviction and passed a background check to attend peace officer training and own, possess, and purchase a firearm. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative reason for separation shall remain MISCONDUCT (CIVIL CONVICTION).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of 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