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NAVY | DRB | 2007_Navy | ND0700650

Original file (ND0700650.rtf) Auto-classification: Denied

ex-YN3, USN
ND07-00650

Current Discharge and Applicant’s Request

Application Received: 20070416 Characterization Received:

Narrative Reason: MISCONDUCT (CIVIL CONVICTION) Authority: MILPERSMAN 1910-144

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. One isolated incident/ prior discharge was honorable/ undergoing medical treatment

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (CIVIL CONVICTION) .

Date: 20 071205 Location: Washington D.C          R epresentation :

Discussion

Issue 1 (Equity): Applicant contends that his discharge was inequitable because it was based on one isolated incident in almost four years of service . The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a civilian conviction from the Virginia Beach Circuit court for production of obscene materials involving a minor (F), (25 counts). This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. The Applicant also s tate s that he received an honorable on his prior discharge and was undergoing treatment for back problems at the time of his discharge . P ursuant to MILPERSMAN 1910-306, characterization of service will be determined solely on the period of the current enlistment or period of service to which the separation pertains. The board only considered the entries in the member’s record pertaining to this enlistment in determining whether his characterization was equitable. The Board further advises the Applicant that his medical condition does not mitigate or justify his misconduct . No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 should be provid ed to the Board include verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. Even though the A pplicant submitted a transcript of his grades from Germanna Community College and a note of Appreciation for participating in a Veteran’s Day program , the Applicant has not provided sufficient documentation for the Board to consider at this time.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Bo ard found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19980804 - 19980921              Active:          19980922 - 20011030
Period of Service Under Review:
Date of Enlistment: 20011031      Years Contracted : ; Extension: Date of Discharge: 20051115
Length of Service : 04 Yrs Mths 15 D ys    Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 47          Highest Rank /Rate : YN3
Evaluation marks (# of occasions):       Performance: 3.4 ( 5 )      Behavior: 2.8 ( 5 )                   OTA: 3.49
Awards and Decorations ( per DD 214): NDSM, GWOTSM, SSDR, AFEM, NER

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20011031:        Reenlisted this date for a term of 4 years.

20041209:        Applicant delivered to Virginia Beach Police Department by Sewells Point Police Department, per arrest warrant and delivery agreement.
20050131         Commenced Unauthorized Absence from AOC Det Sewell’s Point
.
20050921 :        Civil Conviction: Circuit Court, Virginia Beach Municipal Center for Production of Obscene Materials Involving a Minor (F) (25 counts) .
Sentence: 50 years confinement, 2 years for each count. The Court suspended all b ut 10 years on the following conditions : Good behavior for 40 years, supervised probation, cost of $9,450.00 , restitution of unpaid therapy for victim, supervised contact with minors or those with diminished intellect, no contact with the victim, not to posses a computer unless prior approval is granted through Probation, no possession of any materials deemed pornographic and therapy.
20051114         Returned to Military Jurisdiction (surrendered). EAOS extended to 20080527
20051115         Discharged In Abstentia .

Discharge Process

Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     -

Least Favorable Characterization:

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       20051115

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective
28 July 2005 until Present, 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 .

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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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, provi ded 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 grante d 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.

Employmen t / 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 | 2007_Navy | ND0700650

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