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NAVY | DRB | 2007_Navy | ND0701045

Original file (ND0701045.rtf) Auto-classification: Denied

ex-CTO3, USN
ND07-01045

Current Discharge and Applicant’s Request

Application Received: 20070724 Characterization Received: OTHER THAN HONORABLE

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910-144

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Applicant contends that he was recommended for a General discharge
                           3 . Service Record

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Date: 20 08 0117             Location: Washington D.C          R epresentation :

Discussion

: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2: ( ). The Applicant contends that he was recommended for a general discharge. The Board found that the Applicant was the subject of an Administrative Board that recommended a general (under honorable conditions) characterization of service for homosexual acts , and , an other than honorable characterization of service for commission of a civilian conviction. The Applicant’s Commanding Officer recommended the other than honorable characterization of service for the civilian conviction.

Issue 3: ( ). A Sailor may be separated for a commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation. A military or civilian conviction is not required for discharge under this provision. Additionally, w hen a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by a civilian conviction of second degree murder . An upgrade to general (under honorable conditions) would be inappropriate.

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 Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19980713 - 19990603              Active:          19990604 - 20030602
Period of Service Under Review:
Date of Enlistment: 20030603               Years Contracted : ; Extension:          Date of Discharge: 20050119
Length of Service : 01 Yrs 07 Mths 16 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 50          Highest Rank /Rate : CTO3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A             OTA: N/A
Awards and Decorations ( per DD 214): NDSM , SSDR

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

20030603:        Reenlisted this date for a term of 4 years.

20030909 :        Portsmouth, VA Probable Cause Summary: Applicant admitted to performing anal sodomy to the victim and discharging his handgun which resulted in the death of the male deceased.

200 40818 :        Civil Conviction: [Portsmouth District Court] for Second Degree M urder.
Sentence: 13 years in the penitentiary .

20050119:        Applicant discharged in absentia.

Discharge Process

Date Notified:                                       20040831
Reason for Discharge:     -



Least Favorable Characterization:

Date Applicant Responded to Notification:                  20040831
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents                Not Selected
         Submit Statement(s) (date)                         Not Selected
         Administrative Board
         GCMCA review                                Not Selected

Administrative Board Date :       20041101
Findings, by preponderance of the evidence:     BY - .
         BY SEPARATION WARRANTED.
Recommendation on Separation: BY
Recommendation on Characterization:     BY

Findings, by preponderance of the evidence:     BY - HOMOSEXUAL CONDUCT.
         BY SEPARATION WARRANTED.
Recommendation on Separation: BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20041214 )
Separation Authority (date):     COMNAVPERSCOM MILLINGTON TN ( 20050107 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20050119

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), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, 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 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 | ND0701045

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