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NAVY | DRB | 2006_Navy | ND0601009

Original file (ND0601009.rtf) Auto-classification: Denied

ex-IS2, USN
ND06-01009

Current Discharge and Applicant’s Request :

Application Received:                               20 060725
Narrative Reason for Separation:
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-142
Last Duty Assignment/ Command at Discharge:       CNE C6F NAPLES, ITALY

Applicant’s Request:
         Narrative Reason change to:               NOT APPLICABLE
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                             20 070614
The Discharge shall remain:

Regarding p ropriety , the Board found the discharge :
Regarding e quity , the Board found the discharge :
( or BCD only) The Board found that clemency was:
Vot e (characterization/reason)
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Discharge Package Complete:

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                19960906-19961119
Active:                                    19961120-20011118
Period of Service Under Review :
Date of Enlistment:                                 20011119
Years Contracted :                                   ; 12 MONTH EXTENSION
Date of Discharge:                                  20051007
Length of Service:                                  03 Yrs 10 Mos 18 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:
                                                      NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 36
Highest Rate/Rank:                                   IS2

Performance Evaluation Averages (number of marks):
Performance /Behavior/OTA :                          4.2 (5) 3.2 (5) 3.65
         Extracted from: Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), NAVY UNIT COMMENDATION, BATTLE "E" RIBBON (2), FLAG LOC (2), NAVY ACHIEVEMENT MEDAL (2), NAVY GOOD CONDUCT MEDAL, OVERSEAS SERVICE RIBBON (3), JOINT MERITORIOUS UNIT AWARD, JOINT SERVICE ACHIEVEMENT MEDAL, EAWS

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050304: The Applicant was sent TAD to NSA Naples IT, following extremely poor judgment and conduct while on liberty. Due to his actions, his security clearance was revoked and he was removed from his assigned billet [Extracted from Applicant’s Evaluation Report and Counseling Record for the period 20040516 to 20050210].

20050324: Commander, U. S. Naval Forces Europe ltr to Commander, Navy Personnel Command acknowledging the Applicant’s statement in re s ponse to his enlisted evaluation for period 20040516 to 20050210.

20050701: Counsel For Respondent released a Memorandum highlighting IS2 J_ H_ deficiencies leading up to his Administrative discharge.

20050831: Commander, U. S. Naval Forces, Europe ltr to Officer in Charge, PSD Naples granting authority to separate the Applicant within 10 working days after receipt of the letter.

20051025: Commander, U. S. Naval Forces Europe ltr to CNPC detailing Administrative separation in the case of the Applicant. Applicant was locally separated 20051002 by Director; Navy Europe Programs with a General discharge (Commis s ion of a serious of fense). Findings of Administrative Board: Administrative Board held 24 June 2005. “By a vote of 3 to zero, the preponderance of evidence supports Misconduct due to Commission of a serious offense by reason of (1) Attempted Adultery, (2) Adultery, and (3) Sodomy. By a vote of 3 to zero the board recommended separation with a General discharge for misconduct (Commission of a serious offense). ”

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20050414
Narrative Reason(s):


Least Favorable Characterization:
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 20050318
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s)
GCMCA Review
Board Date :                                          20050624
Finding of Administrative Board:



Recommendation of Commanding Officer (date):
Discharge directed by (date):                       COMMANDER, U.S. NAVAL FORCE, EUROPE 20050831
Narrative reason directed :
Characterization of directed:
Date Applicant Discharged:                         20051007

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service:
         Service/Medical Record :                            297
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             2
Other Documentation      (Describe Below)                 3

Total Number of Pages:                            30 2

D escription of Other Documentation:
Complaint of Wrongs submitted from Applicant

Discussion

P ropriety and Equity
There is a presumption of regularity in the conduct of Government affairs. This presumption will be applied in any review unless there is substantial credible evidence to rebut the presumption , to include evidence submitted by the Applicant . A fter a thorough review of the available evidence , to include the Applicant’s Summary of Service, Service Record Entries , Med ical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant’s Issues:
1. Improper Discharge: Propriety.

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1 for consideration.

Issue 1 (Propriety) : Improper Discharge: The Applicant claims he was improperly administratively separated for attempted adultery, adultery and sodomy. The Applicant claims he should have been separated within 50 working days of notification of election of an Administrative Board. After a thorough review of the Applicant’s case it was discovered that the Applicant was discharged beyond the recommended 50 working days time period for personnel who elect an Administrative Board prior to separation. However, MILPERSMAN 1910-010 policy specifically states “every effort should be made to adhere to the time goals for processing separations. Failure to meet these goals is not a bar to separation or type of characterization. ” Based on documented policy guidance relief is not warranted.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .

B . 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 V, Para 502, Propriety and Para 503, Equity.

C. 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 125 (Sodomy) and 134 (Adultery).

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 ” .

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: 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.

Employment / Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/ RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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NAVY | DRB | 2006_Navy | ND0601009

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