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NAVY | DRB | 2009_Navy | ND0900224
Original file (ND0900224.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20081110
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)        19991112 - 19991227     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19991228     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030814      Highest Rank/Rate: AO3
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 3.7 ( 3 )        OTA: 3.65

Awards and Decorations ( per DD 214):      NMCOS

Periods of UA /C ONF :

NJP :
- 20030722 :       Art icle 134 ( Willfully and wrongfully exposed his genitalia in public in an i ndecent manner to a female Japanese National ), 2 specifications
         Awarded : Susp ended :

S CM :    SPCM:    C C :      Retention Warning Counseling :

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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 (Indecent exposure).



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

Applicant’s Issues

 1. An Other Than Honorable Discharge does not accurately reflect h is characterization of service.
2. His a bility to serve was impaired by his youth , i mmaturity and personal problems .
3. Seeks p ost service conduct consideration .
Decision

 Date: 20 0 9 1130             Location: Washington D.C .        R epresentation :

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. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishment ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 134 ( Indecent exposure – 2 specifications ) and a Report Chit Investigation Package o f 2 July 2003 which contains a statement that on two separate occasions, the Applicant exposed himself to a maid (Japanese national) while she was working at the Zama base lodge. The Applicant told the police that his zipper was mistakenly u n zipped and when asked why the same incident happened the weekend prior the Applicant refused to answer any other questions. He later informed the senior duty officer that it was a case of mistaken identity. However, upon being interviewed during a preliminary investigation he confessed to knowingly and purposefully showing his penis to the maid on the two dates in question. Based on the offense committed by the Applicant, command administratively processed for separation due to misconduct as evidenced by the commission of a serious offense . When notified of a dministrative s eparation p rocessing, the Applicant waived right s to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

: ( D ecisional) ( ) . T he Applicant made a personal appearance before the NDRB represented by an American Legion representative and requested an upgrade to General (Under Honorable Conditions) contending the following: 1) the Other Than Honorable characterization does not accurate ly reflect his character of service, 2) his ability to serve was impaired by his youth , immaturity and personal problem (sexual addition) , and 3) he has been continuously emp loyed since being discharged, has obtained his license for a irframe and power plant maintenance and has been married six years . The Applicant admitted under oath to the misconduct of exposing his penis to a female while she was cleaning in the barracks , apologized to the Board and stated that his characterization of service and discharge w ere proper based on the seriousness of the offense he committed. The Applicant testified that t h e misconduct was caused by his “sexual addiction” which he failed to seek treatment for due to his demanding schedule . T here was no evidence in the record nor presented by the Applicant indicating that he had been seen by a mental health or medical provider and diagnosed as having a “sexual addiction.” The Applicant also testified that since being discharged from the Navy he has not engaged in nor does he have a desire to engage in this type of dev ia nt sexual behavior. Based on the testimony of the Applicant, a review of in-service records and evidence of post service conduct submitted by the Applicant, which included a Georgia criminal record history, Wage and Tax Statements for 2003- 2008, personal statement, resume , and Certificate for Airframe and Powerplant Maintenance of 17 August 2006, the NDRB determined that an upgrade is warranted. The NDRB determined the Applicant’s in-service performance as evidence d by the positive comments in his evaluation, overall trait average of 3.65 , personal awards, and his post service conduct were sufficient to justify an upgrade .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found However, based on the Applicant’s in-service and post service performance, the awarded characterization of service shall and the narrative reason for separation shall remain .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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