Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Sanabria, Armando M CIV SECNAVCORB, CORB
Company: NCPB

Docket No. ND15-00960

ex-MC1, USN

Current Discharge and Applicant’s Request

Application Received: 20150407
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (CIVIL CONVICTION)
Reenlistment Code:  RE-4
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)	19891021 - 19900704  COG	Active:	USN  19900705 - 19930811  HON
				USN  19930812 - 20000316  HON
				USN  20000316 - 20040121  HON
				USN  20040122 - 20071119  HON	

Period of Service Under Review:

Date of Current Enlistment:  20071120	Age at Enlistment:  18
Period of Enlistment:  2 Years  8 MONTHS Extension
Date of Discharge:  20100305	Highest Rank/Rate:  MC1
Length of Service:  02 Year(s)   03  Month(s)   14 Day(s)
Education Level:  12	AFQT:  62
Evaluation Marks:	Performance:  5.0 (2)	Behavior:  4.0 (2)	OTA:  4.64

Awards and Decorations (per DD 214):	Rifle MM Pistol MM JSC NMCAM (2) PUC NUC MUC NAVY "E" (5) GCM (4) NEM NDSM GWOTEM GWOTSM SSDR (2) EAWS 

Periods of UA/CONF:  NONE
Period of IHCA:  20090803 – 20100305, 220 days

NJP:  NONE

SCM:  NONE

SPCM:  NONE

CIVIL ARREST:  1

- 20081031:	Charges:  Rape of a child in the First Degree

CC:  1

- 20090803:	Offense:  Two counts of child rape in the second degree and one count of child molestation in the second degree
	Sentence:  14 years 2 months confinement  

Retention Warning Counseling:  NONE

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 ACTIVE SERVICE FROM 900705 UNTIL 071119”

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:	☐

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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.

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

Applicant’s Issues

1.	The Applicant contends that he was innocent of the crimes he was accused of and the case has since been dismissed.

Decision

Date:  20150810	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 (CIVIL CONVICTION).
By a vote of 5-0 the Reenlistment Code shall remain RE-4.

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 Board did complete 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.  The Applicant’s record of service included one civilian arrest for rape of a child in the first degree and one civilian conviction for two counts of child rape in the second degree and one count of child molestation in the second degree.  The Applicant was sentenced to 170 months of confinement by civilian authorities.  The record of evidence shows that the Applicant remained in the hands of civil authorities from 3 August 2009 until his discharge from the Naval Service.  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation in absentia due to his continued civilian incarceration.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 20091012, the Administrative Board found by a vote of 3 to 0 that the preponderance of the evidence supported misconduct due to a civilian conviction; by a vote of 3 to 0 for separation; and by a vote of 3 to 0 that the characterization of service should be Under Other Than Honorable Conditions.  The Separating Authority approved the Administrative Board’s recommendation to separate the Applicant and directed the Applicant be separated with Under Other Than Honorable Conditions discharge.

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that he was innocent of the crimes he was accused of and the case has since been dismissed.  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.  On or about 20090803, the Applicant was convicted of two counts of child rape in the second degree and one count of child molestation in the second degree.  Based upon this civilian conviction, the Applicant was sentenced to 170 months of confinement.  According to MILPERSMAN 1910-144, Separation by Reason of Misconduct - Civilian Conviction,  members may be separated based on civilian convictions, or actions tantamount to findings of guilt if any similar disposition of charges which includes imposition of fines, probation, community service, etc.; when offense would warrant a punitive discharge per reference (a), appendix 12 for same or closely related offense; specific circumstances of offense warrant separation; or civil sentence includes confinement for 6 or more months without regard to suspension, probation, or early release.  It further states that all civilian convictions (federal, state, and local) including any actions tantamount to findings of guilt are binding on issue of whether misconduct has occurred and administrative discharge board is required to find that misconduct did occur.  The administrative separation board findings are independent of the adjudged sentence given by the civilian court system.  Although conducted in absentia of the Applicant due to his civil confinement resulting from his 14 year sentence, on 12 October 2009 the Applicant was represented by qualified legal counsel and afforded his rights to an administrative board.  That board found by a vote of 3 to 0 that the preponderance of the evidence supported misconduct due to a civilian conviction; by a vote of 3 to 0 for separation; and by a vote of 3 to 0 that the characterization of service should be Under Other Than Honorable Conditions.  The Applicant was also discharged over six months after his confinement which warrants separation in accordance with MILPERSMAN 1910-144.  After an exhaustive review of the record, a preponderance of the evidence reviewed supports the conclusion that the Applicants discharge process was in accordance with MILPERSMAN 1910-144, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.    

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 (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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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 	RESTR - Restriction	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	CBW - 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