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NAVY | DRB | 2009_Navy | ND0900255
Original file (ND0900255.rtf) Auto-classification: Denied

ex-PN3, USN
Current Discharge and Applicant’s Request
Application Received: 20081114
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19950825 - 19951031     Active:   19951101 - 19981201 HON

Period of Service Under Review:
 Date of Enlistment: 19981202     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030717      Highest Rank/Rate: YN2
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      GCM (2) (2) NMCOSR (2) (3) FLOC

Periods of UA /C ONF :

NJP :
- 20011211 : Art icle 92 ( Failure to obey lawful general regulation )
Article 107 (False official statement), 7 specifications
 Article 123 (Forgery), 2 specifications
 Awarded : Susp ended :

S CM : SPCM:

C ivil Arrest :

- NFIR : Offense: Sexually explicit photograph of himself found in the possession of a minor
Sentence : NFIR

Retention Warning Counseling:

         -20001108: NFIR (Taken from the Recommendation for Administrative Separation, dated 7 Jul 03)

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:              


Related to Post-Service Period (cont):

        Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

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 92 (Failure to obey lawful general regulation), Article 107 (False official statement) and Article 123 (Forgery).




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

Applicant’s Issues

 1. Should have been discharge with an honorable based on medical conditions .

Decision

Date: 20 0 9 0326             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE .
         
Discussion

 Issue1 : ( ) . The Applicant conten d s his discharge should be upgrade to “H onorable ” because of medical conditions. 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 retention warning and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey lawful general regulation); Article 107 (False official statement), 7 specifications and Article 123 (Forgery), 2 specification. In addition, the Applicant was placed under arrest and in the custody of ci vilian authorities for sexually explicit photograph of himself found in the possession of a minor. For the edification of the Applicant, a service member may be separated based on commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. A service member may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Court-Martial: A military or civilian conviction is not required for discharge under this provision but the offense must be substantiated by a preponderance of the evidence.

As indicated by the CO’s letter for separation dated 7 July 20 03, the Applicant admitted to performing sexual acts with a minor, possession of child pornography and misuse of a government computer for the receipt of sexually explicit ph otographs and emails to a minor. Pursuant to MILPERSMAN 1910-142, members may be separated based on the commission of a serious military offense when specific circumstances of offense warrant separation and the offense would warrant a punitive discharge per the Manual for Court-Martial, Appendix 12 for the same or closely related offenses. T he Board determined the preponderance of the evidence contained in the record , as described above , supports the basis for separation due to commission of serious offenses.

Additionally , DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through a Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the physical evaluation is suspended. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.
When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant had a history of significant psychological problems that were documented in his medical record. Most notable were the problems associated with his 16 year on – off relationship with his present wife. Over the years they have divorced three times and remarried twice; in 2001 they were pending a divorce again. The Applicant and his wife had significant issue related to infidelity and experimentation with multiple sexual partners. While the Applicant may believe his medical condition , an ti-social behavior and borderline traits, w ere the cause of his miscount, t he NDRB

could find no connection between the Applicant’s misconduct and his medical condition. The Applicant ’s discharge was not due to his medical condition, but his civilian arrest for sexually explicit photographs of himself and emails to a minor. The NDRB determined the awarded discharge 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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