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NAVY | DRB | 2009_Navy | ND0900083
Original file (ND0900083.rtf) Auto-classification: Denied

ex-ABH1, USN
Current Discharge and Applicant’s Request
Application Received: 20081008
Characterization of Service Received:
Narrative Reason for Discharge: SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge: MILPERSMAN 1830-040 (tRANSFER TO FLEET RESERVE & RELEASE FM ACTIVE DUTY)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      NONE      Active:            19850723 – 19911027 HON
                                    19911028 – 19980526 HON
                                    19950527 - 20030213 HON
Period of Service Under Review:
Date of Enlistment: 20030214     Age at Enlistment: 42
Period of E nlistment : 2 Years 38 Months Extension
Date of Discharge: 20080229      Highest Rank/Rate: ABHC
Length of Service : 03 Y ear s 00 M onth s 16 D a ys
Education Level:        AFQT: 55
Evaluation M arks: Performance: 3.0 ( 3 ) Behavior: 4.0 ( 3 ) OTA: 3.45

Awards and Decorations ( per DD 214):      (4) J (2) (3) (5) (2) (2) (5) NRSM(Navy Recruiting)

Periods of UA /C ONF : NJP : S CM : SPCM:

C C :

- 20070515 : Offense: Annoy or molest child under 18 years of age
Sentence : Probation for 3 years under the following terms and conditions: Pay $200.00 restitution fine,
 register with local police agency as a sex offender, perform 60 days of CAL TRANS community service.
Retention Warning Counseling : 1

- 20071011 : For voluntarily extending enlistment, the possibility of being transferred to the Fleet Reserve in a reduced
pay grade with a characterization of service as under other than honorable.

Administrative Corrections to the Applicant’s DD 214

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

         “ 22 07 07 ”

The NDRB will recommend to the C ommander, 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 . The Naval Military Personnel Man ual, (NAVPERS 15560D), Change 21 , effective 07 November 2007 until Present, Article 1830-040, Transfer to Fleet Reserve and Release from Active Duty.

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 .




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

Applicant’s Issues

 1. Veteran’s b enefits.
2. Record of service.

Decision

Date: 20 0 9 0205             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT .
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. 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 a civilian conviction for annoying or molesting a child under 18 years of age. For the edification of the Applicant, m embers may be separate d based on civilian convictions when the offense would warrant a punitive discharge under the Uniform Code of Military Justice (UCMJ) . Although no t charged with a violation of the UCMJ, the Applicant’s misconduct could have been charged under Article 120 (Rape, sexual assault, and other sexual misconduct) . These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The command did not refer the Applicant for a court - martial but opted instead for allow the Applicant to transfer to the Fleet Reserve with an “Under Other Than Honorable Conditions” characterization of service.

The Appl i cant has requested an upgrade in his discharge characterization to “Honorable” based on the support his wife provided to him during his 22 years of service. He provides no additional documentation or evidence in support of his request for an upgrade, nor does he attempt to provide any documentation surrounding the civilian charges which resulted in his discharge.
When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.

The Board understands the contributions and sacrifices a service member’s spouse makes throughout a military career. The Board is also aware of the negative impact the conduct of a service member can have on a spouse and family when such conduct results in an untimely or otherwise unprepared for discharge, especially one resulting in an unfavorable discharge characterization. Despite a Sailor’s prior record of se rvice, certain serious offenses even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. The NDRB determined the conduct of the applicant was a significant departure from that expected of a U.S. Sailor with over 20 years of total service to his credit. The characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization 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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