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NAVY | DRB | 2005_Navy | ND0501478
Original file (ND0501478.rtf) Auto-classification: Denied


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

ex-GM1, USN
Docket No. ND05-01478

Applicant’s Request
The application for discharge review was received on 20050908. The Applicant requests the Discharge 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. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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 shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to civil conviction .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge was inequitable because of an isolated short term incident in a otherwise honorable 20 years of service. Even after being diagnosed with two major diseases (Cystic Fibrosis and Diabetes) and being found fully disabled by a medical board I continued to serve my country. My conviction and actions, while regrettable, brought no discredit to the United States Navy or the United States itself. Please consider my service and my plea for this requested change. This change is also requested so I can use the VA benefits and compensations other veterans are allowed to use.”


Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to General Under Honorable Conditions.

The FSM served on active service from June 21, 1985 to April 1, 2003 at which time he was discharged due to Misconduct, due to Civilian Conviction.

The FSM requests clemency in the determination of an upgrade of his current discharge. He contends that a change of discharge status is required to obtain disability assistance with the treatment of his service incurred disability from the Department of Veterans Affairs.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            19820123 – 19820720               COG
         Active: USN                        19820721 – 19850620               HON
         Active: USN                        19850621 – 19910619               HON
         Active: USN                        19910620 – 19970618               HON

 Period of Service Under Review :
Date of Enlistment: 19970619             Date of Discharge: 20030401

 Length of Service (years, months, days):

         Active: 05 09 13
         Inactive: None

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

 Age at Entry: 32

 Years Contracted: 5

 Education Level: 12                                 AFQT: 56

 Highest Rate: GMG1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.7 (4)              Behavior: 4.0 (4)                 OTA: 3 .92

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy and Marine Corps Achievement Medal, Joint Meritorious Unit Commendation, Navy “E” Ribbon (5), Navy Good Conduct Medal (3), National Defense Service Medal, (2), Armed Forces Expeditionary Medal, Southwest Asia Medal with 2 Bronze Stars, Sea Service Deployment Ribbon (2), Kuwait Liberation Medal (KLM).


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 :

970620:  Reenlisted this date for a term of 5 years.
020308:  Federal authorities apprehended Applicant. Applicant incarcerated and denied bail. [Extracted from CO, NAS, Patuxent River ltr dtd 021018.]

020515:  United States District Court for the Western District of Virginia at Charlottesville May 2002 Session, Superceding Indictment:
         Count 1. That on or about December 2001, the Applicant did knowingly receive or attempt to receive child pornography or material that contained child pornography, to wit: photographs that had been mailed, or shipped or transported in interstate commerce by any means, including by computer.
         Count 2. That on or about March 8, 2002, the Applicant did knowingly receive or attempt to receive child pornography or material that contained child pornography, to wit: photographs that had been mailed, or shipped or transported in interstate commerce by any means, including by computer.
         Count 3. That on or about March 8, 2002, the Applicant did knowingly possess or attempt to possess material that contained an image of child pornography that had been mailed, or shipped or transported in interstate commerce by any means, including by computer, or that was produced using materials that had been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.
         Count 4. That on or about December 2001, the Applicant did knowingly use the mails for mailing, carriage in the mails, or delivery, or did knowingly cause to be delivered by mail according to the instructions thereon a package containing non-mailable obscene matter, to wit: a compact disk and color photographs containing visual depictions of minors under the age of 18 engaging in sexually explicit conduct, including a photography depicting the lascivious exhibition of the genitals and pubic area of a minor female.
         Count 5. That between on or about February 16, 2002, and on or about March 8, 2002, the Applicant did knowingly use the mails for mailing, carriage in the mails, or delivery, or did knowingly cause to be delivered by mail according to the instructions thereon, a package containing non-mailable obscene matter, to wit: a compact disk and color photographs containing visual depictions of minors under the age of 18 engaging in sexually explicit conduct, including a photography depicting a minor female masturbating.
         Count 6 – Forfeiture. Upon conviction, the Applicant shall forfeit to the United States any and all matter which contains visual depictions, that have been mailed, or shipped or transported in interstate or foreign commerce by any means, the production of which involved the use of minors engaging in sexually explicit conduct and which visual depictions were of such conduct; and any and all property used or intended to be used to commit or to promote the commission of the aforementioned violation.
         Count 7 – Forfeiture. Upon conviction, the Applicant shall forfeit to the United States any and all obscene material produced, transported, mailed, shipped, or received in violation of this section; and any and all property, real or personal, used or intended to be used to commit or to promote the commission of such offense, if the court in its discretion so determines.

020826:  United States District Court for the Western District of Virginia Lynchburg Division: The Applicant in the presence of his counsel plead guilty to Counts 2, 3, 4, 6 and 7 of the Superceding Indictment in Criminal Action No. 6:02CR30009 and to Count 1 of the Indictment from the District of Maryland in Criminal Action No. 6:02CR00007. Filed in Open Court August 26, 2002.

 020923:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to civilian conviction (possession of child pornography).

020923:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
021018:  Commanding Officer, Naval Air Station, 22268 Cedar Point Road, Unit NASAD, Patuxent River, Maryland recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction. Commanding Officer’s comments: “The federal authorities apprehended Petty Officer L_ (Applicant) on 020308. Subsequently after being incarcerated, he had a bond hearing which he was denied bail. He was charged by indictment in the Western District of Maryland and the District of Maryland on several counts as related to deviant sexual behavior on 020515. On 020826 Petty Officer L_ (Applicant) was convicted of those counts. He will be sentenced on 021120. Petty Officer L_ (Applicant) apparently is incapable of adhering to the rules and regulations of this command and the United States Navy, and is simply unwilling to conduct himself in a manner conducive to good order and discipline. Therefore, I strongly recommend that he be separated from the naval service by reason of misconduct due to a civilian conviction and that he receive an Other Than Honorable characterization of service.”

030122:  CNP directed the Applicant's discharge under other than honorable conditions by reason of misconduct civilian conviction.

030401:  DD Form 214: Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 20030401 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).

 The Applicant contends that his discharge is inequitable because his misconduct was an isolated short-term incident in an otherwise honorable service. 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. However, 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. On 20020515, the Applicant was indicted in civilian court on several counts involving child pornography. In a plea filed in open court on 20020826, the Applicant plead guilty to Counts 2, 3, 4, 6 and 7 of the Superceding Indictment in Criminal Action No. 6:02CR30009 and to Count 1 of the Indictment from the District of Maryland in Criminal Action No. 6:02CR00007. Such misconduct is irrefutable evidence that the Applicant’s conduct during this enlistment was not honorable. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant was properly notified, processed and discharged under other than honorable conditions by reason of civil conviction. Based on analysis of the records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy. Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. Relief denied.

 The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. These issues do not serve to provide a foundation upon which the Board can grant relief. Relief on this basis is denied.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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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