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NAVY | DRB | 2006_Navy | ND0600274
Original file (ND0600274.rtf) Auto-classification: Denied


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

ex-OS2, USN
Docket No. ND06-00274

Applicant ’s Request
The application for discharge review was received on 20051121 . 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 20061005 . 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 General (Under 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 military record was intractable prior to occurrence .
My military legal officer (Lt. M_) advised my on submitting this DD Form 293 for consideration .”
Documentation
In addition to the service and medical r ecord s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19911018 - 19920316       COG
          Active: USN      19920317 - 19941014       HON /RELAD
         Inactive: USNR-R         19941015 - 19950306      HON
          Active:  USN      19950307 - 19970116      HON
                  USN      19970117 - 20020114      HON

Period of Service Under Review :
Date of Enlistment: 20020115              Date of Discharge: 20030925

Length of Service (years, months, days):

          Active: 0 1 0 8 11
         Inactive: None

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

Age at Entry: 29

Years Contracted: 6

Education Level: 12                                 AFQT: 37/44

Highest Rate: OS2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*    OTA: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Marksman Pistol Ribbon; Navy and Marine Corps Overseas Ribbon; Good Conduct Award(3); Humanitarian Service Medal; Meritorious Unit Commendation; Nati onal Defense Service Medal

* Not Available


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

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

020115 :  Reenlisted this date for a term of 6 years.
02 12 23 :  Civil Conviction: Commonwealth of Puerto Rico, General Tribunal of Justice, First Circuit Court, Judicial Center of Fajardo, Puerto Rico for violation of Art 105 CP (Lascivious or lewd acts)
Sentence (031223): Incarceration for 6 years.

030829 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct - civilian conviction .

030829 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statements.

030915:  Commanding Officer, U.S. Naval Station, Roosevelt Roads, Puerto Rico, directed Applicant ’s discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction, authority: MILPERSMAN 1910-144.

 031103 :  Commanding Officer, U.S. Naval Station, Roosevelt Roads , Puerto Rico, notified NMPC that Applicant had been discharged with a general (under honorable conditions) by reason of misconduct due to civilian conviction. Commanding Officer’s comments: “ OS2 O_( Applicant )’s separation from the naval service is due to his conviction by civilian authorities on 23 December 2002, for lascivious and lewd acts. Petty Officer O_( Applicant )’s behavior and conduct was prejudicial to good order and discipline in the armed forces. OS2 O_( Applicant )’s civilian conviction has made him unsuitable for future naval service. Accordingly, OS2 O_( Applicant )’s was separated with a General (Under Honorable Conditions) discharge .”
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030925 by reason misconduct due to civil conviction (A and B) with a service characterization of general (under honorable conditions) . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the disch arge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

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. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by a civilian conviction for lascivious and lewd acts and a civilian sentence of six years confinement. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 additional evidence related to this 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. 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 134 ( Indecent Acts ) .

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 .

 E. 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 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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