ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20140402
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected) MISCONDUCT 
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-144 [CIVIL CONVICTION]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	NONE REQUESTED 
	 
Summary of Service
Prior Service:
Inactive:	USNR (DEP)	19990831 - 19990919  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  19990920	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20000920	Highest Rank/Rate:  SR
Length of Service:  01 Year(s)   00  Month(s)   01 Day(s)
Education Level:  12	AFQT:  70
Evaluation Marks:	Performance:  NFIR	Behavior:  2.0 (1)	OTA:  2.00

Awards and Decorations (per DD 214):	NONE 

Periods of UA/CONF:  NONE

Lost time per DD214: 19991215, 1 day; 20000203-20000306, 33 days

NJP:  NONE	SCM:  NONE	SPCM:  NONE

NDRB Documentary Review Conducted (date):	20130502
NDRB Documentary Review Docket Number:	ND12-01567
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

CC:  1

- 20000307:	Offense:  Conspiracy, wrongful use of fire to commit a felony, aiding and abetting, arson, and wrongful transportation of stolen vehicles in Tyler, Texas. 
	Sentence:  On 20000724- 120 months in state penitentiary, 3 years of supervised probation upon release, and restitution in the amount of $1,934,169.31.

Retention Warning Counseling:  1

- 19991119:	For failure to disclose pre-service civil involvement/convictions: 19990401, petty larceny, Metairie, LA.  You entered a plea of guilty and your charge was amended to a misdemeanor.  You were placed on deferred probation for a term of six months.  You paid a $150.00 fine and $100.00 commissioner’s fee plus all court costs; July 1999, simple battery, Harahan, LA.  You were arrested, but never given a court date for this charge.  The court had no record of the charge.    

Administrative Corrections to the Applicant’s DD 214

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

	Block 28. Narrative Reason for Separation, should read: “MISCONDUCT”

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 30 effective 22 August 2000 until 
23 January 2001, 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 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 submitted post-service accomplishments as mitigation for an upgrade. 

Decision

Date: 20150310   PERSONAL APPEARANCE HEARING   Location: Washington D.C.   Representation: Civilian Counsel

By a vote of 3-2 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and one felony civil conviction from the U.S. District Court, Eastern District of Texas.  Based on the offense committed by the Applicant, her command administratively processed her for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant failed to respond to the administrative separation notification sent via certified mail on 16 August 2000. 

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant submitted post-service accomplishments as mitigation for an upgrade.  The Applicant supplied the Board with an impressive list of post-service accomplishments including a B.S. Degree in Health Sciences from Louisiana State University, a Clinical Laboratory Assistant certification from the Louisiana State Board of Medical Examiners, employment information, and character references.  The NDRB is authorized to consider outstanding post-service conduct in the re-characterization of a discharge, but an upgrade is not authorized solely on such conduct.  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.   Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  The Applicant’s post-service record is impeccable; however, the record and the Applicant’s testimony did not demonstrate that the in-service misconduct was an aberration.  The Applicant’s record and testimony demonstrated that she has a history of petty larceny and illegal marijuana use prior to entering the service.  After serving only five months of a four year commitment, the SNM was a party to a crime resulting in her conviction for two counts of Use of Fire to Commit a Felony resulting in a 120 month prison sentence and $1,934,169 in restitution.  Her command could have pursued a punitive discharge through court martial proceedings.  Instead, the command chose to proceed with the more lenient administrative separation.  Based on the Applicant’s length of service and the felony civil conviction, the NDRB determined the Applicant’s conduct constituted a significant departure from the conduct expected of members of the Naval Service, and the characterization of service as Under Other than Honorable Conditions was appropriate.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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