ex-FN, USN

Current Discharge and Applicant’s Request

Application Received:  20080115
Characterization of Service Received:  
Narrative Reason for Discharge:   (CIVIL CONVICTION)
Authority for Discharge:  MILPERSMAN  (civilian conviction)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20030430 - 20030625  		Active:   
Period of Service Under Review:
Date of Enlistment: 20030626	Period of enlistment:   Years   Extension	Date of Discharge:  20060523
Length of Service:    Yrs    Mths  28  Dys	Education Level:  	Age at Enlistment:  	AFQT:  56
Highest Rank/Rate:  FN	Evaluation marks:  Performance: NFIR	Behavior: NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):     

Periods of UA/CONF:  

NJPs:	
	20041014:  Art(s) 134 (Disorderly conduct).  Awarded -     Susp - 

SCMs:	

SPCMs:	

CC:	

ARREST:	4
	20050213:  Offense: Impersonating a law enforcement officer.  Cost imposed $66.00.  Case deferred until  
                                         20061214.
	20050418:  Offense: Illegal purchase and possession of alcohol.  Case resulted in Nolle Prosequi.
	20060111:  Offense: Possession of Psilocybin (psychedelic mushrooms).  Cost imposed $505.00.  On deferred 
                                          disposition until 20070111.
	20060117:  Offense: Hit and run, reckless driving, and attempted grand larceny.  Case continued until 20060615.

Retention Warnings:  .

Types of Documents Submitted

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

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
	
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe) 

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

Applicant’s Issues
1. One isolated incident.
2. Civilian charges dismissed. 
Decision

Date:  20080430		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (CIVIL CONVICTION).

Discussion
Issue 1 and 2 ().  The Applicant contends his discharge was unfair because it was based on one isolated incident; the case was subsequently dismissed on 11 January 2007 and he did not receive a conviction.  

Despite a service member’s prior record of service certain offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by a non-judicial punishment for violation of the Uniform Military Code of Justice, Art. 134 (Disorderly conduct).  The record also reflects on 13 February 2005 the Applicant was charged in Hampton General District Court, Virginia with impersonating a law enforcement officer; the case was deferred until 14 December 2006.  On 11 January 2006, the Applicant appeared before the Hampton Circuit court, plead guilty to possession of Psilocybin and was placed on deferred prosecution. 

 MILPERSMAN 1910-144, states that members may be separated based on civilian conviction, or actions tantamount to findings of guilt, such as when adjudication is withheld, deferred prosecution or entry into adult/juvenile pretrial intervention programs.  The Applicant’s discharge was based on charges to which the Applicant plead guilty and deferred findings were entered by a civilian court before his discharge.  The fact that the charges were dismissed a year later does not negate the legitimacy of the discharge.   

During Board reviews the government is presumed to conduct its affairs with regularity unless there is credible evidence to rebut the presumption, to include evidence submitted by the Applicant.   Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.    The Applicant also could not provide documentation showing where an impropriety occurred.  As a result the Board determined an upgrade is not warranted.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found  

Pertinent Regulation/Law

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

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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