Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701174

Original file (ND0701174.rtf) Auto-classification: Denied

ex-ET1, USN

Current Discharge and Applicant’s Request

Application Received: 200070829

Characterization of Service Received:

Narrative Reason for Discharge: MISCONDUCT

Authority for Discharge: MILPERSMAN 1910-142 (coso) dd214 corrected to separate for 1910-144 civilian conviction

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19920709 - 19930630              Active: 19930701 - 20000406
Period of Service Under Review:
Date of Enlistment: 20000407     Period of enlistment : Years Months    Date of Discharge: 20021220
Length of Service : Yrs Mths 13 D ys      Education Level:         Age at Enlistment: AFQT: 59 Highest Rank /Rate : E-6       Evaluation marks: Performance: 4.33 ( 3 )    Behavior: 3.0 ( 3 )          OTA: 4.05
Awards and Decorations ( per DD 214): Rifle Pistol (2),

Periods of UA /Confinement :

NJPs :     FOUND

S CMs :

SPCMs:

Retention Warnings:


Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record: Other Records:

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

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) Court Order of Dismissal 20 020502.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. OTH limits employment opportunities ; needs upgrade for career in govt or law enforcement
2. One isolated incident in 9.5 yrs of service and never convicted of a crime/ch arge dismissed
3 . Post service

Decision

Date: 20 08 0124 Location: Washington D.C R epresentation :

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

Discussion

: which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum for additional information regarding Employment/Educational Opportunities .

Issue 2 (Propriety/ ). Applicant contends that his discharge was unfair because it pertained to one isolated incident in
9.5 y ears of service and he did not receive a conviction for the reason he was discharged. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by a finding of misconduct due to commission of a serious offense and civilian conviction at an administrative board for indecent language and communicating via internet with minors for immoral purposes. MILPERSMAN 1910-144, states that members may be separated based on civilian conviction, or actions tantamount to findings of guilt, when adjudication is withheld, deferred prosecution or entry into adult/juvenile pretrial intervention programs. Applicant was charged in Kitsap County District Court, State of Washington for indecent language and communicating with a minor for immoral purposes. Applicant entered a Pre-trial Diversion Agreement on 20020520, with the Kitsap County District Court . He waiv ed his right to a speedy trial, and contract ed to undergo a Psychosexual evaluation and comply with the recommendations, be monitored by a probation officer who w ould search his computer, have no contact with victim/minor, and pay court cost. The case was dismissed five years later , on 20070508, after the Pre - T rial Diversion Agreement conditions were met. The summary of service clearly documents that misconduct due to indecent language and communicating with a minor for immoral purposes was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

Issue 3 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate 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 Board found that

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

B. 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.

C . 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 | ND0701174

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