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

Docket No. ND10-00329

ex-ETC, USN

Current Discharge and Applicant’s Request

Application Received: 20091106
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT (CIVIL CONVICTION) 
Authority for Discharge: (per DD 214) MILPERSMAN 1910-144 [CIVIL CONVICTION]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19880314 - 19880626  COG	Active:	USN 19880627 - 19900412  HON
		USN 19900413 - 20020311  HON
		USN 20020312 - 20050925  HON
Period of Service Under Review:
Date of Current Enlistment:  20050926	Age at Enlistment:  38
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20070405	Highest Rank/Rate:  ETC
Length of Service:  01 Year(s)   06  Month(s)   10 Day(s)
Education Level:  13	AFQT:  60
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA: NFIR  

Awards and Decorations (per DD 214):	NMCAM(5) NAVY "E" MUC GCM(5) NDSM(2) SWASM SSDR(4) GWOTSM ASM DEEP SUBMERGENCE INSIGNIA

Periods of CONF:  NONE

NJP:  NONE

SCM:  NONE

SPCM:  NONE

CC:  1
- 20061005:	Offenses initially charged - 3 specifications
	Specification 1: Attempted sex act with a child (dismissed or withdrawn)
	Specification 2: Use of electronic means to solicit sexual activity with a child
	Specification 3: Possession of child pornography
	Sentence:  NFIR

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 12a, Date Entered AD This Period, should read: “88 JUN 27”

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 12, effective 28 July 2005 until 10 June 2008, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  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.

C.  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.  The Applicant seeks back pay and allowances from date of discharge to end of service obligation.
2.  The Applicant seeks retirement benefits with pension.
3.  The Applicant seeks removal of “GBK” discharge code and replacement with a retirement code.
4.  The Applicant contends he had mental health issues while on active duty and should not have been allowed to reenlist.
5.  The Applicant contends he had poor Navy defense counsel.
6.  The Applicant contends that his civilian court ruling was denied to be sent to the separation authority.

Decision

Date:  20110203          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 (CIVIL CONVICTION).

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 a civilian conviction for use of electronic means to solicit sexual activity with a child and 11 counts of possession of child pornography.  The Applicant used the Internet to solicit sexual activity from an undercover law enforcement officer who was posing as a fourteen-year-old female.  The Applicant traveled to meet the supposed fourteen-year-old and was apprehended.  The Applicant pled guilty to the aforementioned charges.  Based on the seriousness of the civilian offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant appeared before the Administrative Separation Board (ASB) on 14 December 2006.  The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Navy with a General (Under Honorable Conditions) discharge.  The command and separating authority approved the ASB’s recommendations and discharged him accordingly. 

Issues 1-3:  (Nondecisional)  The Applicant seeks back pay and allowances from date of discharge to end of service obligation, retirement benefits with pension, removal of “GBK” discharge code, and a replacement of the discharge code with one indicating retirement.  These are issues that the NDRB has no authority to rule on.  The NDRB is only authorized to review the propriety and equity of a discharge.  These issues should be directed to the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.  The BCNR directed the Applicant to the NDRB, because they first want to see the results of a discharge review.

Issue4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he had mental health issues while on active duty and should not have been allowed to reenlist and transfer while they were unresolved.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied diagnosis, nor the medical treatment given or not given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  With that being said, the NDRB approached this issue from both perspectives: the Applicant and the Navy.

From the Applicant’s perspective, the NDRB opined that this would not be an issue had he not committed the misconduct that led to his separation.  With less than four years to retirement, although the Applicant let his condition be known, he minimized his concerns or issues in order to not affect his reenlistment.  There are discrepancies in the Applicant’s medical file from both parties.  The Applicant, who was a good Sailor, claims he was depressed due to a work-related issue.  The medical staff looked at his situation and determined that it was normal based on the circumstances.  The Applicant’s ultimate decision to not aggressively pursue his concerns due to the “stigma” attached to mental health issues was his choice and his responsibility.

From the Navy’s perspective, it appears the Navy rallied around one of their own by retaining him, transferring him, and trying to help him with his mental health issues.  On the 10 February 2006 medical report, it stated depression was resolved (Full remission) and that he attained a BUMED waiver.  The Applicant was declared fit for duty and cleared to resume his duties as normal.  The NDRB determined that this issue is without merit and would not have been an issue had the Applicant not committed the offenses.  Relief denied.

Issue5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he had poor Navy defense counsel.  The Applicant implies that he did not receive adequate representation from his defense counselor during his ASB.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  In the course of reviewing the Applicant’s service record, transcript of the administrative separation board, and the Applicant’s testimony and notes, the NDRB did not find procedural deficiency in the conduct of his defense attorney.  The Applicant stated in his letter of deficiency, “Lt M_ did not adequately prepare my case.  In his defense, his job is thankless, overworked, and like many commands, under staffed.  He is an excellent attorney and given the amount of time for preparations, he did a good last minute job.”  Unfortunately, the NDRB cannot properly assess the whole situation based on lack of information, besides the Applicant’s account, stating how much time his attorney prepared for this case, the attorney’s workload beyond this case, and his attorney’s rationale for using or not using pieces of evidence relative to the case.  Further, the Applicant stated in his letter of deficiency that, “I’m very thankful to the Board Members for a fair recommendation.  If given the opportunity for a re-board, I would not go through it again because the outcome would probably not change.”  The Applicant’s letter of deficiency was reviewed by the command and separating authority.  Based on presumption and the overall outcome of the ASB, letter of deficiency, and separating process, the NDRB determined that his attorney’s effort was deemed sufficient and the Applicant’s issue is without merit.  Relief denied.

Issue6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his civilian court ruling and letter of transmittal was denied to be sent to the separation authority as an amendment.  The NDRB opined that the letter of transmittal would have had little to no impact on the separating authority’s decision to uphold the ASB’s decision and separate the Applicant from the Navy.  In order to maintain proper order and discipline in the Naval Service, the Navy took action and discharged the Applicant with a General (Under Honorable Conditions) characterization for this period of enlistment.  It is noted that the Applicant had a period of Honorable service from 27 June 1998 to 25 September 2005.  The NDRB determined that the Navy took into account the Applicant’s overall service to the Navy when it rendered its decision based on the facts.  The discharge was proper and warranted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (CIVIL CONVICTION).  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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 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