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NAVY | DRB | 2006_Navy | ND0600412
Original file (ND0600412.rtf) Auto-classification: Denied


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

ex-CTO3, USN
Docket No. ND06-00412

Applicant’s Request
The application for discharge review was received on 20060118 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or gener al (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 20061116 . 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:
“ I was discharged in Absentia under reason of misconduct. I did not commit any misconduct within the United States Armed Forces which warranted “Other Than Honorable ” Discharge under misconduct. Therefore I ask that my discharge be changed from “other than Honorable” to either “General under Honorable terms” or “Honorable” discharge. MY Discharge was inequit a ble because it was based on one isolated incident in 4 years, 11 months, and 10 days of honorable service. ”

Applicant’s Remarks: (Taken from the DD Form 293 to the Board.):
 “I request written explaination of specific issues addressed and what my benefits are due to such conclusion because of me being a Armed forces Veteran. (I.E. Veteran Benefits, MGIB, etc.)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19971115 – 1998092 7      COG
         Active: USN      19980928 – 20011127      HON

Period of Service Under Review :
Date of Enlistment: 20011128              Date of Discharge: 20031206

Length of Service (years, months, days):

         Active: 0 2 00 0 7 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 100 days
         Confinement:              None

Age at Entry: 22

Years Contracted: 6

Education Level: 12                                 AFQT: 48

Highest Rate: CT03

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 0 ( 1 )     Behavior: 2.0 ( 1 )                 OTA: 3.14

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (2), Meritorious Unit Commendation, Battle “E” Ribbon, First Good Conduct Award for the Period Ending 020526, National Defense Service Medal


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 :

011128 :  Reenlisted this date for a term of 6 years.

021111:  Applicant was arrested in Virginia Beach, VA for attempted indecent liberties and use of a communications device to solicit a minor on 021108.
         [Extracted from Commanding Officer’s letter dtd 031124.]
030428:  Circuit Court of Virginia found the defendant (Applicant) guilty of the
following offenses:
1. Use of Communications Systems to Facilitate
2. Certain Offenses Involving Children-F
030814 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to civilian conviction.

030814 :  Applicant advised of rights and having elec ted 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.

030826:  Civil Conviction: Juvenile and Domestic Relations District Court for violation of being a person over the age of eighteen, use a communications system or other electronic means for the purpose of soliciting a minor for an activity in violation of 5818.2361 or 182.-370, knowing or having reason to know that such person was a minor.
 Sentence: Incarceration in the Virginia Department of Corrections for the term of 10 years. The Court Suspends 5 years of the sentence conditioned on the following:
         1. Good behavior. The defendant shall be of good behavior for 5 years from the defendant’s release from confinement.
         2. Supervised Probation. The defendant is placed on Supervised Probation and the defendant shall comply with all the rules and requirements set by the Probation Officer. Length of Probation: Until released by the Probation Officer Probation to Begin: Upon release from confinement.
         3. Costs. The defendant shall pay costs of $410.00.
031124 :  Commanding Officer, USS ENTERPRISE (CVN 65) , recommended to Commander, Cruiser-Destroyer Group 12, that the Applicant be d ischarge d with a characterization of service of under other than honorable conditions by reason of misconduct due to serious offense and misconduct due to civilian conviction. Commanding Officer’s comments: “ On 021111, CTO3 O_ (Applicant) was arrested in Virginia Beach, VA for attempted indecent liberties and use of a communications device to solicit a minor on 021108. On 030428, CTO3 O_ was tried in the Virginia Beach General District Court. The court found him not guilty of attempted indecent liberties but guilty of use of a communications device to solicit a minor. On 030814, CTO3, O_ elected to waive his right to an administrative discharge board. On 0308 26, he was sentenced to confinement for a period of 10 years (suspend 5 years of the sentence conditioned on the following: good behavior, supervised probation, and pay costs), supervised probation beginning upon release from confinement until released by the probation officer, and court costs of $410.00. CTO3 O _ ’s misconduct indicates he does not have potential for further naval service. Accordingly, I recommend that he be discharged from the naval service for misconduct due to civilian conviction. I further recommend that his characterization of service be Other Than Honorable. ”

031127 :  COMCRUDESGRU TWELVE , message to Commanding Officer, USS ENTERPRISE, directing the Applicant ’s discharge of under other than honorable conditions by reason of misconduct due to civilian conviction.

031206:  Applicant discharged in Absentia.
         [Extracted from DD Form 214 .]

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 20031206 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 states “I was discharged in Absentia under reason of misconduct. I did not commit any misconduct within the United States Armed Forces which warranted “Other Than Honorable.” 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 significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. During the period of service under review, the Applicant’s service was marred by misconduct due to civil conviction. This basis for separation authorizes discharge for actions that violate state and local civilian laws and results in a conviction. 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 is requesting a written explanation of possible benefits he may be eligible for. 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. Relief 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 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 . 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . 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 ” .
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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