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Docket No. ND05-00905

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

FOR OFFICIAL USE ONLY

 ex-EM2, USN
Docket No. ND05-00905

Applicant’s Request

The application for discharge review was received on 20050427.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the Applicant’s Narrative Reason for Separation was discovered by the NDRB.  The Board’s vote was unanimous that the reason for discharge shall change.  The discharge shall become Under Other Than Honorable Conditions by reason of misconduct due to civilian conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I would like to respectfully request an upgrade to an under other than honorable conditions to a general under honorable conditions please.  The justification for the request is with a general I can reapply for my green card, then reapply for my citizenship.  So I can make my parents and family proud that I served in the United States Navy.”

Documentation

Only the service record was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	19950628 – 19960206	ELS (Fail to Enlist)
					19960222 – 19960416	COG
	Active:   USN 			19960417 – 20020313	HON

Period of Service Under Review:

Date of Enlistment:  20020314		Date of Discharge:  20030402

Length of Service (years, months, days):

	Active:    01  00  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	51 days (IHCA)
	Confinement:			None

Age at Entry:  24

Years Contracted:  Unknown

Education Level:  12				AFQT:  44

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal (2), Good Conduct Medal (2), Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Navy “E” Ribbon.

* Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

020314:	Reenlisted on board USS CAMDEN (AOE-2) this date. 

030210:	Applicant to unauthorized absence, 0730 030210, in the hands of civil authorities at Federal Corrections, SEATAC, WA pending trial.

030321:	Civil conviction, United States District Court for the Western District of Washington, Tacoma, Washington:  Applicant convicted, in accordance with his plea, for a violation of 18 U.S.C. §2252(a)(4)(B) and §2252(b)(2) Possession of Visual Depictions of Minors Engaged in Sexually Explicit Conduct on 020203.
Sentence:  15 months confinement, assessment fine of $100.00; submitting to mandatory drug testing; and three years probation.

030321:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.  Applicant was notified that the least favorable characterization of service possible is under other than honorable conditions.

030321:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030327:	Commanding Officer, Transient Personnel Unit Puget Sound, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to civilian conviction.  Commanding Officer’s comments:  “EM2 N_ (Applicant) was found guilty at a civilian court for possession of visual depictions of minors and engaging in sexual explicit conduct, thus demonstrating a total disregard for the Navy’s core values.  He shows no potential for further naval service.  I recommend discharging him with an Other Than Honorable Discharge.”

030331:	Commander, Navy Region Northwest, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

030402:	DD-214:  Applicant discharged in absentia under other than honorable conditions by reason of misconduct due to commission of a serious offense.

The Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20030402 by reason of misconduct due to the commission of a serious offense (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Narrative Reason for Separation was improper, but the characterization of service was equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.   Applicable regulations generally forbid using misconduct that occurred in a prior enlistment as a basis for separation in the current enlistment.  The Applicant was convicted of violating 18 U.S.C. §2252, possession of visual depictions of minors engaged in sexually explicit conduct, in the United States District Court for the Western District of Washington.  According to court records, the Applicant was convicted on 20030321 for misconduct that occurred on 20020203.  The Applicant’s service record contains evidence that indicates he reenlisted in the United States Navy on 20020314.  Although the Applicant’s service record does not contain a reenlistment contract, an entry in the Applicant’s NAVPERS 1070/605, History of Assignments indicates the Applicant reenlisted in 20020314 while attached to USS CAMDEN (AOE-2).  Additionally, the Applicant’s time in service surpassed his original EAOS and both of his contract extensions.  Such evidence was sufficient for the Board to apply the presumption of regularity and presume the Applicant in fact reenlisted on the date indicated in the record.  On 20030321, the Applicant was notified of intended recommendation for separation by reason of misconduct due to commission of a serious offense and misconduct due to civilian conviction.  Upon separation, the Applicant’s DD Form 214 was issued to state that he had been separated by reason of misconduct due to commission of a serious offense with a separation code designating sexual perversion.

A careful review of all of the evidence convinced the Board that the Applicant was processed and separated for misconduct due to commission of a serious offense that did not occur in the current enlistment.  The evidence of record showed that the serious offense for which the Applicant was separated was his possession of child pornography.  While the Board concurs that this is indeed a very serious offense, in the Applicant’s case, the offense occurred in a previous enlistment and is therefore not an appropriate basis for separation.  As noted above the Applicant was dual processed for serious offense and misconduct due to civilian conviction.  This civilian conviction did occur in the Applicant’s current enlistment.  As such, the proper reason for discharge in the Applicant’s case is by reason of misconduct due to civilian conviction.  The Board voted unanimously to change the Applicant’s narrative reason for separation to misconduct due to civilian conviction.  Relief granted.  

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by a civilian conviction in Federal district court for possession of child pornography and an unadjudicated 51 day unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge be upgraded so that he may obtain a “green card.”  There is no requirement or law that grants recharacterization solely on the issue of obtaining immigration benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 (formerly 3630605), SEPARATION OF ENLISTED PERSONNEL 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

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