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NAVY | DRB | 2005_Navy | ND0500963
Original file (ND0500963.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND05-00963

Applicant’s Request
The application for discharge review was received on 20050519. The Applicant requests his characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I was wrongfully accused of the charges processed against me. Also I am seeking a career with the local Fire Department and I would also like to receive the benefits that are entitled to me. I respectfully request that the status of my discharge be upgraded to General. I feel that my service in the military warrants an upgrade. An expunge has been filed and granted by the state of Virginia, I feel that the trump up charges filed against me cut short my military career with great regrets.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Evaluation Report & Counseling Record
Certificate of Completion (Basic Boat Coxswain Course K-062-0634) dtd December 4, 1998
Administrative Remarks (4 day basic Fire Fighting Training Indoctrination Course)
Letter of Completion (Night Vision Devices (NVD) Phase One Training) dtd November 20, 1998
Letter of Completion (Landing Signalman Enlisted Course) dtd November 20, 2998
Administrative Remarks (Qualified Second Class Swimmer) dtd March 30, 1998
Certificate of Completion (Helicopter Indoctrination and Handling) dtd November 20, 1998
Memorandum for the Record (Personnel Qualification Standard for Small Boat Officer/Crew NAVEDTRA 43152), dtd December 4, 1998
Letter of Commendation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970813 – 19970826     
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970827             Date of Discharge: 19990709

 Length of Service (years, months, days):

         Active: 01 10 13
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 4

Education Level: 12                                 AFQT: 58

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 4.0 (1)                 OTA: 3 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

990206:  Charged with forcible rape, Virginia Beach, VA.
990517:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct serious offense

990517:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

 990615:  Commanding Officer, USS Gunston Hall (LSD-44), recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “In light of the serious nature of the charges against SN Koennecke, recommend that he be separated from the” (next page missing).
990623:  Commander, Amphibious Group TWO, directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990709 by reason of misconduct due to the commission of a serious offense (A and B) with a under other than honorable conditions characterization of service. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct which would warrant a punitive discharge if tried by special or general court-martial has occurred. There is evidence in the record that the Applicant violated the UCMJ Article 120 (rape), which substantiates misconduct by the commission of a serious offense for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. Relief is not warranted.

The Applicant contends that his discharge was inequitable based upon the civilian charge that led to his discharge being expunged from the record. In the Applicant’s case, the official navy record documents that the Applicant was charged with a forcible rape in Virginia Beach, VA. The Applicant contends that the charge has since been expunged, however offers no documentation to substantiate his claim. The Applicant bears the burden of substantiating his claim through the presentation of substantial and credible evidence. Statements alone do not overcome the presumption. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit, relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and court records documenting the expungement of civilian charges. The Applicant has not provided post-service documentation for the Board to consider.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .

 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 violations of UCMJ Article 120 (rape).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the 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

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