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

Docket No. ND09-00783

ex-CTM2, USN

Current Discharge and Applicant’s Request

Application Received: 20090220
Characterization of Service Received:  UNDER OTHER THAN 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)	19980814 - 19990721  COG	Active:	USN  19990722 - 20030513  HON

Period of Service Under Review:
Date of Enlistment:  20030514	Age at Enlistment:  24
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20080922	Highest Rank/Rate:  CTM2
Length of Service:  05 Year(s)   04  Month(s)   08 Day(s)
Education Level:  12	AFQT:  53
Evaluation Marks:	Performance:  3.5 (8)	Behavior:  3.1 (8)	OTA:  3.28

Awards and Decorations (per DD 214):	NDSM GCM SSDR NAVY "E" GWOTSM EAWS ESWS 

Periods of UA/CONF:  NONE     

NJP:  NONE     

SCM:  NONE    

SPCM:  NONE     

Civilian arrest:  1

- 20060728:  Applicant arrested by Virginia Beach Police Department for two counts of Aggravated Sexual Battery victim under thirteen years, a felony.   

Retention Warning Counseling:  1

           - 20070207:  For deficiencies in your performance and/or conduct are identified as deficient: Unauthorized Absence on 21 Jun 07.

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACITVE SERVICE FROM 19990722 TO 20030513”
	
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:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☒
              Additional Statements:
                             From Applicant:  ☒	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☒ Virginia Beach & Commonwealth of Virginia expungement documentation

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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.

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

Applicant’s Issues

1. Discharge was inequitable because it was based on an unsubstantiated accusation.
2. Served proudly for 9 years and upheld the core values of the Navy.
3. The State of Virginia expunged the Applicant’s record based on significant lack of evidence. 

Decision

Date:  20090702	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 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 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 does not reflect any misconduct, but the Applicant was arrested by the Virginia Beach Police Department on two counts of aggravated sexual battery of a victim under thirteen years old (his three year old daughter), a felony.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When processed for administrative separation, the Applicant elected to consult with a qualified counsel, submit a written statement, and request an administrative discharge board (ADB). The ADB voted 3 – 0 that a preponderance of the evidence supported misconduct due to commission of a serious offense, the evidence warranted separation, and that separation should be characterized as “OTH” (Under Other Than Honorable Conditions).

Issues 1-2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable because it was based on unsubstantiated accusation and his record of service was honorable.  For the Applicant’s edification, a service member may be separated, regardless of his rank or record of service, based on commission of a serious military or civilian offense when conviction for the offense would warrant separation and a punitive discharge.  There is no requirement under Navy regulation for final adjudication/conviction of the offense by judicial or non-judicial proceedings for administrative separation due to the commission of a serious offense, but the offense(s) must be substantiated by a preponderance of the evidence—normally attained through a preferral of charges, grand jury indictment, etc.  Prior to making its decision, the ADB had considerable evidence with which to determine a preponderance of evidence did exist to include a civilian preferral of charges, a determination by the Family Advocacy Program, reports from medical providers and social workers, etc.  The NDRB determined that, although the Applicant was accurate in his contention that he was never convicted of the offense, his command and the ADB did determine that he committed the offenses in question based on a preponderance of evidence and, therefore, properly separated from the Navy.   

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the State of Virginia expunged his record from the court system due to significant lack of evidence.  A Virginia Court did issue an Order for Expungement on 16 January 2008 regarding the charges of aggravated sexual battery on his daughter.  However, based on an affidavit by the Assistant Commonwealth’s Attorney (City of Virginia Beach), the prosecutor’s office decided not to prosecute this case through a “nolle prosqui” determination—that the Defendant was not believed to be innocent of the charges against him, but that successful prosecution of the case was unlikely due to the victim’s age.  The NDRB noted in the correspondence that the nolle prosqui determination did not preclude the Commonwealth of Virginia from prosecuting these same charges at a later date.  Although the State of Virginia did issue an Order of Expungement of the Applicant’s arrest for the offense, it was not for significant lack of evidence or a determination of innocence.  Based on the evidence of record, the NDRB determined the Applicant’s statement does not support his contention.

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.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing until fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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 Association of Service Disable 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 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 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 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

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	CCU - Correctional Custody Unit	BW – 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