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NAVY | DRB | 2005_Navy | ND0501162
Original file (ND0501162.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SKC, USN
Docket No. ND05-01162

Applicant’s Request
The application for discharge review was received on 20050706. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20060131. After a thorough review of the 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to civilian conviction .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I have not done anything wrong. I tried to prove my innocence. Even risk 30 years of liberty just to prove my innocence. Military wise: I have not done any wrong doing. I am a dedicated sailor, gave 110% of everything I can do. Made exceptional results in all tasks I’ve done. I was once a morale, welfare and recreation leading chief and made thousands of faces smile and satisfied. I just want to have something I can be proud of. Just leave me something to share the society of what I once was, an honorable chief.”
Attached Documents: “I am currently suffering from depression. I have no job and in need of medication. I would like or request assistance medically. Also, if possible if I can receive any financial assistance. Maybe a 15 year lump sum retirement so I can start my own business and be a productive citizen again. As well as to support my dependent daughter. I will greatly appreciate your consideration.”

 Applicant’s Remarks: I have done over 17 years of military service. I am still willing to serve, even through the rest of my lifetime. I am a hardworking individual, dedicated and willing to do anything for this country. If I need to go to operation deep freeze or station in any isolated area, I will do so. I will even go to the middle east and risk my life. I wish to be reenlisted again.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter from M_S. D_, Probation Officer, dtd June 17, 2005
Letter from Applicant dtd June 30, 2005
Letter from Applicant dtd August 1, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19860228 – 19860504               COG
         Active: USN                        19860505 – 19930902               HON
         Active: USN                        19930903 – 19990819               HON

 Period of Service Under Review :
Date of Enlistment: 19990820             Date of Discharge: 20021025

 Length of Service (years, months, days):

         Active: 03 02 05
         Inactive: None

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

 Age at Entry: 35

Years Contracted: 4

Education Level: 12                                 AFQT: 25

 Highest Rate: SKC

 Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were made available to the Board for review.

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Letter of Commendation, National Defense Service Medal (2), Southwest Asia Service Medal, Sea Service Deployment Ribbon (2), Armed Forces Expeditionary Medal, Navy Unit Commendation, Navy and Marine Corps Achievement Medal (4), Navy Unit Commendation, Fourth Good Conduct Award.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).
Chronological Listing of Significant Service Events :

990820:  Reenlisted this date for a term of 4 years.
020131:  Civilian Conviction United States District Court, Middle District of Florida, Tampa Division: Applicant convicted of one violation of 18 U.S.C. §2422(b) for using any facility or means of interstate commerce to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years, to engage in any sexual activity for which any person can be charged with a criminal offense.
 Sentence: Imprisoned for a term of 41 months, upon release from imprisonment, the Applicant shall be on supervised release for 3 years. Assessment of $100.00.
020712:  Applicant notified of intended recommendation for discharge by reason of misconduct due to civilian conviction. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

020712:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
021008:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to civilian conviction, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
021008:  Commanding Officer, Transient Personnel Unit, Jacksonville, Florida. recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction. Commanding Officer’s comments: “I concur with the findings and recommendation of the Administrative Board.”

021021:  CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 20021025 by reason misconduct due to civil conviction (A) with a service characterization of under other than honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by a federal court conviction for a violation of 18 U.S.C. §2422(b) Coercion and enticement of a minor. Contrary to his plea, the Applicant was convicted of that offense and sentenced to 41 months in federal prison and three years of supervised release. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that “military wise”, he has done nothing wrong. Under applicable regulations, administrative discharge processing on the basis of civilian conviction is not dependent upon a direct nexus of misconduct to military service. To be legally sufficient, a finding of misconduct due to civilian conviction requires that one of the following criteria be met: that conviction in a civilian court for misconduct could have merited a bad conduct discharge if tried by general or special court-martial; that specific circumstances of the offense warrant separation; or that the civilian conviction include a sentence to confinement greater than six months. In the Applicant’s case, the evidence of record was clear. The Applicant was convicted of enticing a minor to engage in a sexual act by the United States District Court for the Middle District of Florida. It is clear to the Board that separation was warranted based on the circumstances of the offense and because the service member received a sentence of 41 months confinement. The evidence of record showed to the Board’s satisfaction that the Applicant was properly processed and discharged by reason of misconduct due to a civilian conviction. Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and this issue does not serve to provide a foundation upon which the Board can grant relief. Likewise, the NDRB has no authority to award the Applicant a “15 year lump sum retirement.” Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-144 (previously 3630610), 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 V, Para 502, Propriety .

C. 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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