ex-SK3, USNR

Current Discharge and Applicant’s Request

Application Received: 20100120
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040318 - 20040629  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040630	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080629	Highest Rank/Rate:  SK3
Length of Service:
	Inactive:	 Year(s)     Month(s)   12 Day(s)
	Active	 Year(s)     Month(s)   00 Day(s)
Education Level:  		AFQT:  50
Evaluation Marks:	Performance:  2.7 (3)	Behavior:  2.7 (3)	OTA:  3.05

Awards and Decorations (per DD 214):	, , ,  (x2), 

Periods of UA:  20050107-20050111, 5 days 
Periods of CONF:  Exact dates not found in record, Applicant arrested and ordered held by Norfolk, VA Circuit Court; bail denied 17 July 2008.  Discharged in absentia due to civilian confinement.  

NJP:  	SCM:  	SPCM:  	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:

	  “05JAN07 TO 05JAN11”

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 11 June 2008 until 9 November 2009, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE

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 122 (Robbery).

D.  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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility to Department of Veterans Affairs (VA) benefits and better employment opportunities.

2.	Decisional issues: The Applicant contends that his civilian misconduct was an isolated incident in what was otherwise meritorious service and had nothing to do with his military performance of duties; as such, he seeks an upgrade in the characterization of his service at discharge to Honorable.  

Decision

Date:  20110609	         	Location:  Washington D.C.	Representation:  

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 NDRB 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 Applicant identified one decisional issue for the NDRB’s consideration; in addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service reflects entry into military service at age 18 on an 8 year Training and Administration of Reserves (TAR) Program contract with no extensions.  Throughout his enlistment period, the Applicant received no NAVPERS 1070/613 retention-counseling warnings.  The Applicant’s period of enlistment also included no nonjudicial or judicial punishments for any violations of the Uniform Code of Military Justice.  However, the Applicant’s service record does include an arrest, confinement, and conviction by civilian legal authorities for Statutory Burglary - a felony conviction - in violation of the Virginia criminal code 18.2-91.  The record of service reflects that the Applicant was indicted by the Grand Jury on 02 July 2008, remanded in the hands of civilian authorities on 17 July 2008, and remained without bond until his criminal trial and conviction by the Circuit Court of Norfolk, Virginia on 19 August 2008.  The court sentenced the Applicant to serve five years of confinement, but suspended all of the confinement in excess of time already served and directed it be applied as probation.   

The NDRB applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package.  The NDRB was unable to review the Applicant’s administrative separation package to determine his election of rights; however, the Applicant’s DD Form 214 separation code documents civilian conviction, no discharge review board warranted.  Following a review for sufficiency in law and fact by a Staff Judge Advocate, the Separation Authority determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended by the chain of command, was warranted.  As such, the Separation Authority approved the discharge action and designated the basis for separation as MISCONDUCT (Civilian Conviction) pursuant to Article 1910-144 of the Naval Military Personnel Manual (MILPERSMAN).  On 29 June 2008, the Applicant was discharged with a General (Under Honorable Conditions) characterization for Misconduct (Civilian Conviction) and was not recommended for reenlistment or reentry.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility to Department of Veterans Affairs (VA) benefits and better employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  

(NDRB Board Issue) ().  In accordance with Article 1910-144 of the MILPERSMAN, commanders may process a service member for separation when civilian authorities (foreign or domestic) have convicted a service member, or taken action which is tantamount to a finding of guilty, when: (1) the specific circumstances of the offense warrant separation; (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or (3), the sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.  The evidence of record documents that the Applicant was discharged pursuant to Article 1910-144 (Misconduct - Civilian Conviction) on 29 June 2008; however, he was not convicted, nor was there a tantamount finding of guilt, until 19 August 2008.  Accordingly, the NDRB determined that the Applicant’s narrative reason for separation was improper.  The proper basis for administrative separation in the case of the Applicant is Article 1910-142 of the MILPERSMAN: Misconduct due to the commission of a serious offense.  

In accordance with Article 1910-142, a commander is authorized to separate a service member for a serious military or civilian offense when: (1) the specific circumstances of offense warrant separation; and (2) the offense would warrant a punitive discharge for the same or closely related offense.  Separation processing for misconduct due to the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence (e.g., copy of police record, a Grand Jury indictment, Naval Criminal Investigative Service investigation).  The Applicant’s Grand Jury indictment for an alleged violation of Virginia Code 18.2-91 establishes the requirement for a preponderance of the evidence and is closely related to violation of Article 122 of the UCMJ (Robbery).  This violation of the UCMJ could warrant punitive discharge and confinement for up to ten years, if adjudicated at trial by special or general courts martial.  Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s civilian misconduct properly satisfied the requirements for separation as established by the MILPERSMAN pursuant to Misconduct (Serious Offense) as the correct basis for discharge, not Misconduct (Civilian Conviction).  As such, the NDRB determined there was impropriety in the discharge action due to an error of procedure and that the proper narrative reason for discharge is Misconduct (Serious Offense), not Misconduct (Civilian Conviction).  As such, the narrative reason for discharge shall be changed to Misconduct (Serious Offense).

(Decisional Issue) ()  .  The Applicant contends that his civilian misconduct was an isolated incident in what was otherwise meritorious service and had nothing to do with his military performance of duties.  A service member’s characterization of service is founded on the recognition of his performance and his conduct, both on duty and off, and is not necessarily dependent upon the narrative reason for separation.  Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) characterization of service at discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duties outweighs the positive aspects of the member’s military record.  Based on the seriousness nature of the Applicant’s misconduct, the Command recommended that he be separated with a General (Under Honorable Conditions) characterization of his service at discharge.  The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant’s discharge for misconduct and further directed that he receive a General (Under Honorable Conditions) characterization of his service.  

Upon review of the Applicant’s record of service and the available documentary evidence, the NDRB determined that the Applicant’s service was in fact honest and faithful, but that a significant negative aspect of the member’s conduct did outweigh the positive aspects of his military record.  The NDRB determined that the characterization of the Applicant’s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that a change or upgrade in the characterization of service would not be appropriate and that relief is not warranted.        

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the narrative reason for separation shall change to , however, the awarded characterization of service shall  .  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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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), 2 Navy Annex, Washington, DC 20370-5100 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