Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801955
Original file (ND0801955.rtf) Auto-classification: Denied

ex-STS2, USN
Current Discharge and Applicant’s Request
Application Received: 20080924
Characterization of Service Received:
Narrative Reason for Discharge: (SEXUAL PERVERSION)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19871202 - 19880111     Active:            19880112 - 19900118
                                    19900119 - 19951217
                                    19951218 - 20010826
                                    20010827 - 20030825

Period of Service Under Review:
 Date of Enlistment: 20030825     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071228      Highest Rank/Rate: STS2
Length of Service : Y ear s M onth s 03 D a ys
Education Level:        AFQT: 96
Evaluation M arks: Performance: 3.5 ( 6 ) Behavior: 1.0 ( 6 ) OTA: 2.93

Awards and Decorations ( per DD 214):      (2) (4) (2) (2) SDPP (17) FLoC (3)

Periods of UA : 20020807 - 20071227 (147 days)

NJP : S CM : SPCM: C C :

Retention Warning Counseling:

- 20040518:      For exceeding height/weight and body fat standards limits and failure of the PRT.
- 20060621:      For exceeding height/weight and body fat standards limits and failure of the PRT.
- 20060112:      For exceeding height/weight and body fat limits and failure to meet physical readiness test standards.
 - 20060629 :       For failure to meet body composition assessment standards and failure to meet physical readiness test standards.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19900119 UNTIL 2003082 ”
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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 :

Oth er Documentation :

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 134 .


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

Applicant’s Issues

 1. Service benefits.
2. Record of service .

Decision

Date: 20 0 9 0129             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (SEXUAL PERVERSION) .
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 , specifically the paragraph concerning , regarding .
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. Specifically, he claims there is no record of di sciplinary action against him and he was discharged only fifteen days short of retirement. 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 record of service was marred by an Administrative Separation Board which determined the preponderance of the evidence indicated the Applicant had committed the following acts: I ndecent communication with a child under the age of 16; possession and distribution of child pornography; indecent liberties with a child; and sodomy with a child under the age of 12. The Applicant should understand that the basis of his separation, “commission of a serious offense (sexual perversion)”, does not require adjudication by judicial or non-judicial proceedings. The offense must be substantiated simply by the preponderance of the evidence. As indicated above, the Applicant’s Administrative Separation Board on 10 August 2007 concluded this standard was met and recommended the Applicant be separated with an “Under Other Than Honorable” conditions discharge.

The NDRB understands the burden the Applicant’s misconduct and discharge places on his family. However, the Applicant does not deny the misconduct, had sufficient time in the service to have known the consequences of such actions and the evidence against the Applicant was strong enough to support a civilian conviction which he claims he has served. The NDRB rejects the Applicant’s contention serving his civilian sentence and being discharged form the Navy short of retirement is double jeopardy since there is no requirement for disciplinary action in order to separate a Sailor. The NDRB determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization of the Applicant’s service 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

Similar Decisions

  • NAVY | DRB | 2011_Navy | ND1101594

    Original file (ND1101594.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the...

  • NAVY | DRB | 1997_Navy | ND97-01370

    Original file (ND97-01370.rtf) Auto-classification: Denied

    ND97-01370 Applicant’s Request The application for discharge review, received 970904, requested that the characterization of service on the discharge be changed to honorable. Members not meeting physical readiness standards shall be required to participate in the command-directed physical conditioning program (Level I), which must consist of an exercise component and should also include other Health Promotion Program elements. c. In the course of a discharge review, it is determined that...

  • USMC | DRB | 2009_Marine | MD0901646

    Original file (MD0901646.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2002_Navy | ND02-00318

    Original file (ND02-00318.rtf) Auto-classification: Denied

    ND02-00318 Applicant’s Request The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).Issues 1 and 2: The Applicant claims his discharge was inequitable because it was based on two minor incidents that occurred after 10 years of...

  • NAVY | DRB | 2005_Navy | ND0501243

    Original file (ND0501243.rtf) Auto-classification: Denied

    Furthermore advised that failure to show significant progress towards meeting Navy’s body fat standards, failure to achieve body fat standards during the 12-month aftercare period, or failure to maintain standards thereafter shall result in consideration for separation from the naval service.931108: Administrative remarks from Commanding Officer, Naval Submarine Base, Kings Bay, GA to EN2 C_ (Applicant). SNM is able to do PRT without any problems. Additionally, i n the Applicant’s case the...

  • NAVY | DRB | 2006_Navy | ND0600639

    Original file (ND0600639.rtf) Auto-classification: Denied

    ” PART I - ISSUES AND DOCUMENTATION Decisional Issues Propriety: Not advised of rights or offered counsel Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19880930 - 19890125 COG Active: USN 19890126 - 19920715 HON Period of Service Under Review :Date...

  • USMC | DRB | 2013_Marine | MD1300346

    Original file (MD1300346.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2015_Navy | ND1501158

    Original file (ND1501158.rtf) Auto-classification: Denied

    Based on a failure to maintain physical readiness standards, her command administratively processed her for separation. Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall be corrected to PHYSICAL STANDARDS. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s...

  • NAVY | DRB | 1999_Navy | ND99-00083

    Original file (ND99-00083.rtf) Auto-classification: Denied

    ND99-00083 Applicant’s Request The application for discharge review, received 981014, requested that the characterization of service on the discharge be changed to Honorable. Additionally , his overall service record warrants an Honorable discharge, regardless of the three PRT failures.In the applicant’s issue 1, the Board determined this issue has merit. There is no documentation of any disciplinary action against him, other than the weight control problem, he was selected as the Junior...

  • NAVY | DRB | 2010_Navy | ND1000461

    Original file (ND1000461.rtf) Auto-classification: Denied

    A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.Issue 3: (Decisional) (Board Issue) (Equity) RELIEF WARRANTED After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. Relief granted.Summary: After a thorough review of the available...