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NAVY | DRB | 2006_Navy | ND0601098

Original file (ND0601098.rtf) Auto-classification: Denied

ex-AM1, USN
ND06-01098

Current Discharge and Applicant’s Request :

Application Received:                               20 060815
Reason for Separation:                              - CIVILIAN CONVICTION
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-144
Last Duty Assignment/ Command at Discharge:       VQ3 DET OFFUT AF

Applicant’s Request:
         Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:                or                                                                              UNCHARACTERIZED
         Review Requested :
         Representation:
         Issues (as summarized by NDRB):          1. Misconduct not service related, service record was unblemished.


Decision:

Date of Decision:                                            20070719
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

By a vote of the Characterization shall .
By a vote of the Reason for Discharge shall - .

Summary of Service :

Prior Service:
Inactive: USNR                                        19930617 - 19940623
Active: USNR                                          19940614 - 19960516 IADT HON
         USNR                                          UNABLE TO DETERMINE - 19980119
         USN                                          19980120 - 20010228 HON
Period of Service Under Review :
Date of Enlistment:                                 20010301
Years Contracted :                                   ;
Date of Discharge:                                  20050715
Length of Service:                                  04 Yrs 04 Mos 15 Days
Time Lost During This Period:                      UNABLE TO DETERMINE IF ANY

Education Level:
Age at this Enlistment:
AFQT:                                                 81/80
Highest Rate/Rank:                                   AM1

Performance Evaluation Averages (number of marks):
                  Performance : 4.6 (5)      Behavior : 3.8 (5)                  O TA : 4.06

Awards and Decorations (as listed on the DD Form 214) * : NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL (3), ARMED FORCES EXPEDITIONARY MEDAL, NATO MEDAL, BATTLE "E" NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON, KOSOVO CAMPAIGN MEDAL

*Service record indicates 2 ^nd awd of Navy and Marine Corps Achievement Medal, Southeast Asia Service Medal w/star, Enlisted Aviation Warfare Specialist

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

20050505:        Civil Conviction: District Court of Sarpy County, Nebraska. Applicant pled guilty to Incest, a class III felony and Sexual assault of a child by contact, a class IIIA felony. The plea was accepted and judgment of conviction is entered. A pre-sentence investigation was ordered and applicant’s bond continued pending sentencing. Sentencing date set for 20050701.

20050701 :        Applicant senten c ed to j ail for a period of not less than 2 years no more than 5 years, required to register under the Sex Offender Registrati on Act for the rest of his life, pay $105.00.
         [Extracted from Commanding Officer’s letter dated 20050725.]

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

None.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  ADMINISTRATIVE BOARD PROCEDURE
Date Notified :                                        20050509
Reason for Discharge                                MISCONDUCT -
                                                      MISCONDUCT -
Least Favorable Characterization:

Date Applicant R esponded to N otification:                 20050509
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)

Commanding Officer Recommendation (date):        NOT APPLICABLE
Separation Authority (date):      COMMANDER, STRATEGIC COMMUNICATIONS WING ONE (20050705 )
R eason directed :                                              MISCONDUCT -
Characterization directed:
Date Applicant Discharged:                         20050715

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 Under Review :
         Service/Medical Record :                            1
         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:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            1

Discussion

Decisional Issues:

Issue 1 ( ). Members may be separated based on civilian convictions when the offense(s) would warrant a punitive discharge per the Manual for Courts-Martial for the same or closely related offense(s). Processing is mandatory for
deviant sexual behavior to specifically include any child sexual abuse or incestuous relationships. The offenses for which the Applicant was convicted also constitute offenses under the UCMJ for which a punitive discharge is authorized, namely, Article 134, Assault - Indecent and/or Indecent acts or liberties with a child. The heinous nature of the Applicant’s crimes do not warrant an upgrade of his characterization of service. Relief is not warranted on this issue.

An uncharacterized characterization of service is available only when a servicemember is in an entry level status, i.e. within 180 days of entry into active duty. Therefore, the Applicant is ineligible for an uncharacterized characterization of service.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 27 July 2005, Article 1910-144, 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 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 134, Assault - Indecent and Indecent acts or liberties with a child .

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 | ND0601098

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