Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND09-00022

ex-HM2, USN

Current Discharge and Applicant’s Request

Application Received:  20081001
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-142 (COMMISSION OF A SERIOUS OFFENSE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910417 - 19920310  COG	Active:	USN  19920311 - 20000622  HON

Period of Service Under Review:
Date of Enlistment:  20000623	Age at Enlistment:  26
Period of Enlistment:  3 Years  23 MONTHS Extension
Date of Discharge:  20050228	Highest Rank/Rate:  HM2
Length of Service:  04 Years   08  Months   06 Days
Education Level:  12	AFQT:  90
Evaluation Marks:  Performance:  3.7 (4)               Behavior:  2.7 (4)           OTA:  3.42

Awards and Decorations (per DD 214):	NMCAM GCM (4) NDSM (2) NMCOSR (4) MUCR (4) Rifle EX Pistol EX

Periods of UA/CONF:  NONE   NJP:  NONE   SCM:  NFIR   SPCM:  NFIR   CC:  NONE   

Retention Warning Counseling:  NONE

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:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☒	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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 120 (Rape and carnal knowledge).

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

Applicant’s Issues

1.  Reenlistment opportunity.
2.  Bias in handling of his case by his command.
3.  Insufficient representation by appointed military counsel.
4.  Punishment of prohibiting reenlistment is unfair.
5.  Post-service conduct.

Decision

Date:  20090129	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Reenlistment/RE Codes, regarding this Issue.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends he is entitled to a discharge upgrade due to his record of service.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service available to the NDRB does not contain records of NJP, a trial by court-martial or documents related to his discharge.  Therefore, the NDRB relied heavily upon the presumption of regularity in reaching a decision on this Issue.  The Applicant’s statement included with his DD-293 Application states he “…reluctantly entered a plea of guilty to 2 of 3 charges in return for the 3^rd charge being dropped and receiving a General Administrative discharge.”  Based upon the incident reports in this case which are contained in the record, the NDRB presumes one of these charges was for violating Article 120 (Rape and carnal knowledge; indecent exposure) of the Uniform Code of Military Justice.  Violation of Article 120 is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not did not seek a punitive discharge by court-martial but opted instead for an administrative discharge.  For the edification of the Applicant, the Navy Personnel Manual in effect at the time of his discharge directed mandatory administrative separation processing in all cases involving, among other acts, indecent exposure.  The Applicant should also understand that despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  

The Applicant contends he is entitled to a discharge upgrade due to bias in the handling of his case by his chain of command.  The Applicant specifically contends the Command Master Chief, Executive Officer and Commanding Officer were all female with an “obvious bias towards “the victim”, another female…” The NDRB rejects the Applicant’s contention as being without merit.  There is no evidence the command acted improperly.  Furthermore, the evidence in the record reflects written statements by the Applicant fully indicating he sexually exposed himself and made comments of a sexual nature.  The  fact the command accepted the Applicant’s plea bargain allowing a discharge characterizations of “General (Under Honorable Conditions)” service when it could have sought a punitive discharge with the possibility of a less favorable characterization shows the command was not intent on awarding the maximum punishment to the Applicant.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 3:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends he is entitled to a discharge upgrade because the military counsel appointed to his case did not provide sufficient advice and did not actively help in his defense.  The NDRB 

rejects the Applicant’s contention.  If the Applicant felt he was not properly represented at the time of his trial, he should have sought assistance then. Additionally, the Applicant has not submitted any evidence supporting his allegation of ineffective assistance of counsel, nor does the record contain any.  The evidence of record clearly reflects the Applicant admitted in writing to sexually exposing himself and making comments of a sexual nature.  The Board determined an upgrade would be inappropriate based on military counsel not providing sufficient advice. 

Issue 4:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends the “RE-4” code was unfairly awarded as punishment even though his court-martial found no reason to separate him.  The NDRB again rejects the Applicant’s contention because he agreed to accept such a discharge in exchange for pleas of guilty to two of the charges against him.  The awarding of an “RE-4” reentry code is typical for discharges processed under Article 1910-142 “SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE” of the MILPERSMAN.  As identified in Issue 1, the NDRB cannot change an awarded Re-enlistment code; the Applicant must petition the Board for Correction of Naval Records for this action.

Issue 5:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character. 

The Applicant provided evidence of an Honorable discharge from the Army National Guard on 17 May 2007 and provided statements regarding employment and continued Reserve service. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct did not mitigate the misconduct which precipitated the discharge.  To warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate.  Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

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 the discharge was proper and equitable.  

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 or is referred to a court martial 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 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 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 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 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		CC - Civilian conviction	B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water