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NAVY | DRB | 2009_Navy | ND0900095
Original file (ND0900095.rtf) Auto-classification: Denied

ex-MM1, USN
Current Discharge and Applicant’s Request
Application Received: 20081009
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19930812 - 1994062 6     Active:   19940627 – 19960627
                           USN 19960628 - 20020627

Period of Service Under Review:
Date of Enlistment: 20020628     Age at Enlistment:
Period of E nlistment : NFIR
Date of Discharge: 20071015      Highest Rank/Rate: MM1
Length of Service : 13 Y ear s M onth s 20 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks: Performance: 3.8 ( 5 ) Behavior: 3.6 ( 5 ) OTA: 3.86

Awards and Decorations ( per DD 214):      (4)

Periods of UA /C ONF :

NJP : NONE S CM : CC: Retention Warning Counseling : NFIR

SPCM: convened but documentation NFIR (COMNAVAIRFORLANT ltr 1910 Ser N01L undtd, charge sheet dtd 20070419)

- Date NFIR : Art icle 92 (Failure to obey order or regulation – search for/view pornographic images)
          Article 134 (Receive or possess child pornography) , 4 specifications
         Sentence : NFIR      

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ Medical Record:         Other Records: NCIS rpt of 20070118
                                                                                                    NCIS rpt of 20060327
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 :





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

Applicant’s Issues

 1. Accepted an UOTH discharge, in lieu of trial by court martial, to stop a long on-going investigation.

Decision

Date: 20 0 9 0212             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL .
Discussion

 : ( ) . The Applicant contends he accepted an “ Under Other Than Honorable ” discharge to stop a long on-going investigation (approximately 1 year 7 months) because he could not perform his naval duties and it was taking a toll on his family. 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 one SPCM for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 92 ( F ailure to obey a lawful general regulation) and Article 134 ( R eceiving and possessing child pornography ), 4 specifications . 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. Apparently, t he comman d did not complete the SPCM against the Applicant but rather decided to administratively discharge him in lieu of trial by court martial .

The Naval Criminal Investigative Service (NCIS) report of 27 March 2006 identified 698 files of sexually explicit content were found on the Applicant’s computers. Additionally, the NCIS report of 18 January 2007, it states, “DCFL ( Defense Computer Forensics Laboratory ) analysis revealed twenty-two (22) files of suspected child pornographic images. S/MAJKA was interrogated and admitted culpability in searching for and accessing child pornography on NSB government computers.” In the attorney’s letter of 28 August 2007 for the Applicant, the Applicant admits to being guilty of the Article 92 charge of using his federal government computers to view pornographic images for 3.5 years, but denies ever opening or searching for any child pornography. The contractor who examined the Applicant’s two computers found a number of “index prints” containing adult and child thumbnail images on the computers, but only the adult index prints were enlarged. The attorney’s letter was written after the NCIS report and did not address the Applicant’s admission in searching for and accessing child pornography.

The Board noted the record of evidence clearly shows the Applicant waived his right to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him. The Applicant submitted no evidence to support his contention; therefore the NDRB must rely upon the presumption of regularity in the conduct of government affairs.

The Applicant has requested an upgrade in his discharge characterization to “Honorable”. 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. A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. As a First Class Petty Officer , the Applicant should have known his behavior was unacceptable. Based on the NCIS reports and the applicant ’s admission of using his federal computers to search and view pornographic images for 3 ½ years , t he Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and was not reflective of those receiving an “Honorable” characterization,



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 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
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 92 and Article 134.


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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