Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902312

Original file (ND0902312.rtf) Auto-classification: Denied

ex-SKC, USN

Current Discharge and Applicant’s Request

Application Received: 20090818

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)        19860429 - 19860618     Active:          19860619 - 19900525 HON
                                    USN       19900526 - 19940609 HON
                                    USN       19940610 - 19970227 HON
                                    USN      19970228 - 2000 0920 HON

Period of Service Under Review:
Date of Current Enlistment: 20000921     Age at Enlistment:
Period of E nlistment : Years 23 Months Extension
Date of Discharge: 20040528      Highest Rank/Rate: SKC
Length of Service : 03 Y ear ( s ) M onth ( s ) 8 D a y ( s )
Education Level:        AFQT: 31
Fitness Reports:         Incomplete (missing 20030916 - 20040528)

Awards and Decorations ( per DD 214):      Rifle Pistol (7) JMUA (2) (2) (2) (5) (2) (5)

Periods of UA /C ONF : 20030701 - 20030902 (2 months, 2 days) IHCA

NJP :

S CM :

SPCM:

C C : ARRESTED

- 20030701 :       Offense: Capital sexual battery, possession of child pornography, obstruction of justice
         Applicant pled guilty, using a Best Interest Plea, to Lewd and Lascivious Exhibition and Lewd and Lascivious Conduct
         Sentence : Convicted and sentenced to 6 years in prison after his discharge date

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (7), JOINT MERITORIOUS UNIT AWARD (2), NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION (2), NAVY “E” (2), GOOD CONDUCT AWARD (5), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, SOUTHWEST ASIA SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (5), M16 RIFLE SHARPSHOOTER, 9MM EXPERT PISTOL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, MILITARY OUTSTANDING VOLUNTEER SERVICE MEDAL, ENLISTED SURFACE WARFARE SPECIALIST ”

“ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 86 0619 UNTIL 000921 ”

“ UNDER OTHER THAN HONORABLE CONDITIONS ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 120, Aggravated sexual abuse of a child.

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

Applicant’s Issues

1. Discharge for misconduct was improper.

Decision

Date: 20 10 0625 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 discharg e 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 a civilian arrest for capital sexual battery, possession of child pornography, and obstruction of justice. Based on the offenses allegedly committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends that his discharge for misconduct was improper, because it was based on crimes he has no recollection of committing, adding that he was involuntarily intoxicated on prescribed psychiatric and thyroid medications. On 1 July 2003, the State of Florida charged the Applicant with capital sexual battery, possession of child pornography, and obstruction of justice after an investigation into allegations that he had sexual intercourse with his 12-year-old biological daughter. The Applicant subsequently violated a military order to stay away from his family by kicking in the back door of his house to remove a videotape. Additionally, a search of the Applicant’s e-mail account aboard his command, USS Underwood, revealed an ongoing conversation with a 15-year-old girl in Boston in which he presented himself as a Chief Petty Officer in the Navy and was aware that the girl was in high school and was under the age of 18. During the course of the conversation, the Applicant repeatedly asked for pictures of the girl and discussed meeting her.

The Applicant was assigned counsel in December 2003 and had an administrative board delayed to allow time for a resolution of his civilian trial. On 24 March 2004, his command denied a second request to delay the administrative board after the Applicant’s civilian trial was again delayed. The Applicant then voluntarily waived the administrative proceeding based on a dvice from his assigned counsel, whereupon his command recommended him for an immediate administrative discharge, which was subsequently approved.

Administrative discharge for commission of a serious offense does not require nonjudicial proceedings , judicial proceedings , or civilian conviction . H owever, the offense must be substantiated by a preponderance of evidence. Based upon the civilian charges against the Applicant, the Applicant’s command properly initiated administrative separation proceedings. The Applicant was provided the opportunity to present his case before an administrative board but waived that right, thus accepting the discharge recommended in the letter of notification.

As to the charge of impropriety based on the Applicant’s contention that he was involuntarily intoxicated, the NDRB does not have the authority to change a characterization of service or narrative reason for separation based on medical-related reasons. Only the Board for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) can grant this type of change.

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 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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NAVY | DRB | 2009_Navy | ND0902312

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