Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: michele.i.schmidt
Company: NCPB

Docket No. ND10-01270

ex-AOAA, USN

Current Discharge and Applicant’s Request

Application Received: 20100423
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT 
Authority for Discharge: (per DD 214) 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)	20030117 - 20030720  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20030721	Age at Enlistment:  20
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20050211	Highest Rank/Rate:  AOAA
Length of Service:  01 Year(s)   06  Month(s)   21 Day(s)
Education Level:  12	AFQT:  61
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  2.5 (2)	OTA:  3.34

Awards and Decorations (per DD 214):	Rifle SS, Pistol SS, NDSM

Periods of UA/CONF:  NONE

NJP:  NONE	SCM:  NONE	SPCM:  NONE

CC:  2

- 20041012:	Offense:  Driving Under the Influence of Alcohol [date of offense - 25 Sept 2004]
	Sentence:  96 hours community service; Level I alcohol treatment; drivers license suspended for 90 days; and $705.00 in fines 

- 20041027:	Offense:  Statutory Gross Misdemeanor Sexual Seduction of a Minor; 2 counts.  [Date of offense - 11 July 2004] 
	Sentence:  Probation for 3 years; register as sex offender for 7 years; and $25.00 in fines  

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:	☐	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.  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 111 and Article 120. 

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

Applicant’s Issues

Decisional issues: The Applicant did not identify any specific issues related to the equity or propriety of his discharge.

Decision

Date:  20110628	       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

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 NDRB 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 did not identify any issues of impropriety or inequity for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  The Applicant did not provide any additional documentary evidence for the NDRB’s consideration or to rebut the NDRB’s presumption of regularity in the conduct of Governmental affairs.  

The Applicant’s record of service contains two civilian convictions in the state of Nevada for Driving Under the Influence of Alcohol and for a Gross Misdemeanor with a Minor.  In accordance with Article 1910, section 233, and 142 of the Naval Military Personnel Manual (MILPERSMAN), the nature of the misconduct required mandatory processing for administrative separation.  On 04 November 2004, the Applicant was notified of the proposed separation action pursuant to Article 1910-142 (Misconduct – Commission of a Serious Offense) and Article 1910-144 (Misconduct – Civilian Conviction).  The NDRB reviewed the Applicant’s administrative separation package; the Applicant was notified using the board notification procedure and acknowledged and completed his response to the notification on 15 November 2004.  He was advised that the least favorable characterization of service warranted for this separation action was Under Other Than Honorable Conditions.  The Applicant elected to exercise his right to consult with qualified legal counsel and to submit a written statement to the Separation Authority; however, the Applicant waived his right to request his proposed discharge action be presented to an administrative hearing board.  

On 14 December 2004, the command forwarded their recommendation for separation and for characterization of service to the Separation Authority; the commander recommended separation due to the nature of the misconduct, but that due to extenuating circumstances, the Applicant receive a General (Under Honorable conditions) characterization of his service at discharge.  The Applicant was directed to be separated locally under the authority of Article 1910-700 of the MILPERSMAN on 05 January 2005.  He received a General (Under Honorable Conditions) characterization of service and a narrative reason for separation of Misconduct – Commission of a Serious Offense.  Finally, the Applicant received an RE-4 reentry code on his DD Form 214 (not recommended for reenlistment).

(NDRB Board Issues)  (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant did not identify any issues to the NDRB.  However, the NDRB did a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline.  In accordance with Article 1910-142 of the MILPERSMAN, servicemembers may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial.  The Applicant’s service record formally documents a civilian conviction for Driving under the Influence of Alcohol (DUI), which, if adjudicated under the Uniform Code of Military Justice, would have been a violation of Article 111.  In accordance with the Manual for Courts-Martial, violation of this Article of the UCMJ warrants a punitive discharge and confinement for up to 6 months, if adjudicated at trial by court-martial; thus, the violation met the requirement of the MILPERSMAN for administrative separation due to the commission of a serious offense.  

Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct (commission of a serious offense) as the basis for discharge.  As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge.  Accordingly, relief based on propriety is not warranted.    

The Applicant was convicted, twice, in civilian court in the state of Nevada.  The first charges filed against the Applicant were for statutory felony sexual seduction of a minor.  Due to extenuating and mitigating circumstances, the state prosecuting attorney reduced the charges to Gross Misdemeanor Sexual Seduction of a Minor - the Applicant received a sentence of 3 years probation and a 7-year period of registration as a sex offender.  Subsequent to the first civilian criminal arrest, the Applicant was arrested and charged for driving under the influence of alcohol: he was found guilty in court and ordered to community service, alcohol rehabilitation treatment, and a suspension of his driving license.  Due to the civilian conviction for the Gross Misdemeanor Sexual Seduction of a Minor, processing for separation was mandatory.  The command recognized the same extenuating and mitigating factors as the Prosecuting Attorney did; they notified the Applicant for all applicable bases for separation, but argued for separation based on the Misconduct (Commission of a Serious Offense) related to the DUI vice the Misconduct (Civilian Conviction).  The Separation Authority agreed with the command’s recommendation, and the Applicant was awarded a General (Under Honorable Conditions) characterization of service.          

Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful, but that the civilian convictions were significant negative aspects of his conduct and performance of duties and did outweigh the positive aspects of his service record.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge.  Relief denied.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that 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.  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