Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND09-01865

ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received: 20090623
Characterization of Service Received:  (corrected)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214)  MILPERSMAN 3630600 [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)	19910621 - 19910825  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19910826	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19941108	Highest Rank/Rate:  EN3
Length of Service:  03 Year(s)   00  Month(s)   21 Day(s)
Education Level:  12	AFQT:  36
Evaluation Marks:	Performance:  3.8 (6)	Behavior:  3.5 (6)	OTA:  3.80

Awards and Decorations (per DD 214):	NDSM OSR USCGMUC NUC USGSOSR

Periods of UA: 19940425-19940617 (22 days in Duvall County jail, Jacksonville, FL)  CONF:  NONE

NJP:  1

- 19931123:	Article 86 (UA 2359, 19931112-0900, 19931113, 9 hours)
	Article 87 (Missing movement)
	Awarded: RIR RESTR EPD FOP  Suspended:  RIR

SCM:  NONE

SPCM:  NONE

CC:  1

- 19940706:	Offense:  Lewd and lascivious assault on child
	Sentence:  Jail for 60 days, probation for 5 years, community control - psychosexual counseling for 1 year, fined $253.00

Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 29, Dates of Time Lost During This Period, should read “19940425-19940617 (22 days)”

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/To Representation:	☐	From/To Congress member:	☐
                    Other Documentation:	☐

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

Applicant’s Issues

1.  His attorney coerced him into thinking all was going to be fine.
2.  Post-service conduct warrants consideration.

Decision

Date:  20100513	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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave: 9 hours) and Article 87 (Missing movement), and one civilian conviction for lewd and lascivious assault on a four-year-old.  Based on the offenses committed by the Applicant, his command administratively processed him for separation for misconduct due to commission of a serious offense and civilian conviction.  When notified of administrative separation processing using the administrative procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  By a vote of 3-0, the administrative board, based on the preponderance of evidence, found the Applicant had committed misconduct due to a commission of a serious offense and due to civilian conviction; and by a vote of 3-0, recommended separation and an Under Other Than Honorable Conditions discharge.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his attorney coerced him into thinking all was going to be fine, and had he known his civilian conviction would have affected his military career, he would have fought to prove his innocence.  The Applicant signed a Circuit Court, Fourth Judicial Circuit, Duval County, Florida, Plea of Guilty and Negotiated Sentence-Form 2, in which he pled guilty to charges that he did handle, fondle, or make an assault upon [victim], a child under 16 years of age, in a lewd, lascivious, or indecent manner, touching the vagina of [victim] contrary to the provisions of Section 800.04, Florida Statutes.  He also stated, “I have not been offered any hope of reward, better treatment, or certain type of sentence to get me to plead guilty – other than the sentence set forth above – nor have I been threatened, coerced, or intimidated in any way to get me to plead guilty.”  Based on the evidence of record, the NDRB found this issue to be without merit. Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant provided several character references and certification as a sheet metal worker.  The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  Based on the evidence provided by the Applicant, the NDRB determined there was not enough documentary evidence to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  
The Applicant's efforts need to be more encompassing.  The Applicant should provide documentation which could include but not limited to:  letters of personal references and verifiable employment record/letter of recommendation from his employers; evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); and certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service and if married, a marriage certificate.  The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. 

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 is not eligible for a personal appearance hearing since fifteen years has elapsed from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraph titled Additional Reviews.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, 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 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 87 and 120.

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

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	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