Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801558

Original file (ND0801558.rtf) Auto-classification: Denied

ex-AN, USN

Current Discharge and Applicant’s Request

Application Received: 20080717

Characterization of Service Received: OTHER THAN HONORABLE CONDITIONS

Narrative Reason for Discharge: CIVIL CONVICTION

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19950408 - 19950802                 Active:

Period of Service Under Review:
Date of Enlistment: 19950803     Period of E nlistment : Years Extension         Date of Discharge: 19990512
Length of Service : Y ear s M onth s 18 D a ys      Education Level:       Age at Enlistment:     AFQT: 44
Highest Rank /Rate : AN    Evaluation M arks: Performance:    3.0 ( 1 ) Behavior: 2.0 ( 1 )        OTA: 2.83
Awards and Decorations ( per DD 214):      GCM NDSM AFEM AFSM SSDR

Period of UA : 19990121-19990512 per DD 214

NJP : S CM : SPCM: Retention Warnings:

C C :
- 19990315 : Offense: Lewd and lascivious/sexual battery on a minor under 16
Sentence : Pled guilty/adjudication of guilt withheld; 5 years probation; pay psychosexual counseling; and 1
year jail/57 days credit .

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ 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 Congress m ember :

         Other Documentation (Describe) :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 1 September 1998 until
15 September 1999, 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 .

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

Applicant’s Issues

1. Discharge based on one i solated incident and a civilian conviction in 46 months of service.

Decision

Date: 20 08 1106 Location: Washington D.C . R epresentation :

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

Discussion

: ( ) . The Applicant contends his discharge is inequitable because it was based on one isolated incident and a civil conviction after 46 months of service with no other adverse action. 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. 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. The Applicant's misconduct is documented in his service record, which is marred a civilian conviction on 03 March 1999 for lewd and lascivious conduct and a sexual battery on a minor under the age of 16. The record reflects the Applicant took 3 females (ages 13 -15) to a Comfort Inn, rented a room where he fondled the breast and inserted his finger in to the vagina of one of the females ( who later admitted they had been dating a month ) . Three days later he was arrested and subsequently entered a plea of guilty for lewd and lascivious behavior with a female under the age of 16. Although discharge for one civil conviction may seem harsh, that conviction was for lewd and lascivious acts on a minor. Additionally, this behavior was discrediting to the Navy and demonstrates a total disregard for local and military laws regarding inappropriate acts with minors. Based on the serious nature of the offense committed and the lack of mitigating evidence submitted by the Applicant, the Board determined the awarded discharge characterization was appropriate and 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

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | 2008_Navy | ND0801558

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