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NAVY | DRB | 2009_Navy | ND0901660
Original file (ND0901660.rtf) Auto-classification: Denied

ex-IC1, USN
Current Discharge and Applicant’s Request
Application Received: 20090527
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)        19810616 - 19810629     Active:            19810630 - 19840627
                                    USN      19840628 - 19891029
                                    USN      19891030 - 19970213

Period of Service Under Review:
Date of Current Enlistment: 19970214     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980724      Highest Rank/Rate: IC1
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 3.42

Awards and Decorations ( per DD 214):      (3)

Periods of UA /C ONF :

NJP : S CM : SPCM:

C C :

- 19960812 :       Offense: Unlawful sexual intercourse and oral copulation with person under 16 years/18 years
         Plea bargain: 3 Misdemeanor charges: 2 counts of attempted rape with person under 16; 1 count of unlawful intercourse over 21
          Sentence : 3 years probation; $4,000.00 victim restitution; fined $200.00 plus other probation cost. Additionally , he was forbidden to have any contact with the victim and must not be in the presence of unrelated females between the ages of 21 and 18 unless his wife or an approved adult is in his presence at all times

Retention Warning Counseling :

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 891030 UNTIL 970213 ”
         “ MILPERSMAN 1910-144 ”

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

Oth er Documentation :   

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 to 31 August 1998, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

B. 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 and 125 .

 C . 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 .



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

Applicant’s Issues
1. Seeking federal employment.
2. His discharge was in error.
 3. Court documents dismissed his case and his status returned to not guilty.

Decision
Date: 20 10 0225             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 for this enlistment period included one civilian conviction for unlawful sexual intercourse and oral copulation with a person under 16 years/18 years of age. Based on the Applicant’s civilian conviction , his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant elected his rights to consult with a qualifi ed counse l and request an administrative board .

Issue 1 : (Nondecisional) The Applicant stated he is seeking federal employment . 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.

Issue 2 -3 : (Decisional) ( ) . The Applicant contends his discharge was in error and he d id not notice the type of discharge he received until 1 October 2008 -three months after his separation . He also claimed that a military review board in June 1998 found him innocent of any misconduct. Additionally, the Applicant contends c ourt documents dismissed his civilian conviction and his status was returned to “ not guilty. ”

The evidence of record shows the Applicant did have an administrative review board on 27 March 1998. By a vote of 3-0, the administrative board concluded that the preponderance of evidence did not support that the Applicant had committed misconduct ( civilian conviction / commission of a serious offense ) , and recommended retention. In a Chief of Navy Bureau of Personnel (BUPERS) letter dated 11 June 1998, it was noted that the administrative review board had improperly d isregarded the MILPERSMAN which specifically delineates that civilian convictions are binding on administrative boards. Therefore , the board’s decision was set aside and the Applicant was separated for misconduct based on his arrest, the evidence against him and his plea of guilty – which met the standard for a preponderance of evidence . The Applicant provided the NDRB with documentation from the Superior Court of California, County of Riverside, dated 11 April 2001 (two years after his discharge) that his motion was granted and his plea of guilty/conviction would be set aside and a plea of not guilty entered . T he case was subsequently ordered dismissed (no further information) .

For the Applicant ’s edification , a service member may be separated based on a civilian conviction and p rocessing is mandatory for deviant sexual behavior. Although the administrative review board determined that the Applicant should be retained , the ir decision, by regulation, is a recommendation only and the separation authority has the final say on these matters . On 15 June 1998, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) signed a letter approving the Applicant ’s administrative separation for misconduct – due to civilian conviction -- with a characterization of General (Under Honorable Conditions). T he NDRB found the discharge was not in error, was proper and equitable, and the awarded characterization of service was warranted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e n tries, d ischarge p rocess and evidence submitted by the Applicant , 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



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 Disabled American 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 their 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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