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NAVY | DRB | 2008_Navy | ND0800855
Original file (ND0800855.rtf) Auto-classification: Denied

ex-IT1, USN
Current Discharge and Applicant’s Request
Application Received: 20080327
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT (SEXUAL PERVERSION)
Authority for Discharge: MILPERSMAN 1910-142 (MISCONDUCT COMMISSION OF A SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
 Inactive: NONE                              Active: 19950222 – 20010929 HON
Period of Service Under Review:
 Date of Enlistment: 20010930      Period of Enlistment : Years Extension  Date of Discharge: 20060127
Length of Service: Yrs Mths 28 D ys     Education Level:         Age at Enlistment:       AFQT: NFIR
Highest Rank/Rate: IT1    Evaluation Marks: Performance: 4.7 ( 4 )    Behavior: 4.5 ( 4 )         OTA: 4.67
Awards and Decorations (per DD 214): JSAM (2) NMCAM MUC NGCM (3) NDSM (2) GWOTSM SSDR (2)
CC:     
20051014 : Offense: 2 ND Degree Sexual Assault of a Child (Class C Felony), Incest with a Child (Class C Felony), and
Child Enticement-Sexual Contact (Class C Felony) .
                   Sentence – Released on $100,000.00 bail .
Types of Documents Submitted/reviewd

 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 Representation:              From Member of Congress:
Other Documentation (Describe)




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

Applicant’s Issues

 1. Accused of a crime he didn’t do and he was subsequently acquitted by a jury.

Decision

Date: 20080627 Location: Washington D.C R epresentation : PERSONAL REPRESENTATIVE

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SEXUAL PERVERSION).
Discussion

 ( ): . The Applicant contends the characterization of his discharge should be upgraded because he was accused of a crime he did not commit and he was subsequently acquitted by a jury. He provided a copy of the Judgment of Dismissal/Acquittal from the State of Wisconsin for the Board’s consideration. 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. Pursuant to MILPERSMAN 1910-142, separation of a service member due to commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.

The Applicant’s argument that his discharge should be upgraded because he was acquitted of the charges in the Circuit Court of Wisconsin is not persuasive since the civilian case had not been adjudicated at the time of his separation. The record reflects the Applicant was administratively processed for misconduct due to the commission of as serious offense and provided the opportunity to present his case before an administrative separation board. The administrative separation board was held on 30 November 2005. The members voted 3:0 finding the Applicant had committed misconduct due to the commission of a serious offense and voted 3:0 recommending separation with an “Other Than Honorable Discharge”. The Applicant was discharged on 27 January 2006. On 15 August 2007, almost two years later, the Applicant was acquitted of count 1 (2 nd degree assault of a child) and count 2 (Incest with a child). The charges contained in count 3 (2 nd degree assault of a child) and count 4 (Incest with a child) were dismissed on the prosecutor’s motion. Based on a preponderance of the evidence contained in the record and presented by the Applicant, t he NDRB determined the narrative reason proper and equitable at the time of issuance. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. Additionally, the Board found the “Under Other Than Honorable Conditions” characterization appropriate and that an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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 120, Sexual assault on 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 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, 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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