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NAVY | DRB | 2010_Navy | ND1000404

Original file (ND1000404.rtf) Auto-classification: Denied

ex-FC2, USN

Current Discharge and Applicant’s Request

Application Received: 20091119

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:         NONE              Active: 19970522 - 20010222 HON
         Active: 20010223 - 20080 703 HON
Period of Service Under Review:
Date of Current Enlistment: 20080 7 0 4     Age at Current Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090717      Highest Rank/Rate: FC2
Length of Service : Y ear ( s ) 00 M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 84
Evaluation M arks , Current Enlistment: Performance: 3.0 ( 2 ) Behavior: 2.0 ( 2 )     OTA: 2.83

Awards and Decorations ( per DD 214):      Rifle , Pistol , (2) , , , (3) , (2) , ,

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

C C :
Offense s : [Extracted from Officer in Charge Recommendation for Administrative Separation package with enclosures dated 20090529]
(1) Involuntary M anslaugter , State of Virginia
(2) Indecent E xposure , State of California
Sentence : NFIR

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 970522 UNTIL 080703 ”

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 11 June 2008 until 9 November 2009, Article 1910-144, Separation by Reason of Misconduc t - Civilian Conviction.

B. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .

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, Articles 92 .

D . 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.       Nondecisional issues : None

2.       Decisional issues : (Propriety) The Applicant contends that his discharge was improper in that the civilian conviction offenses that he was discharged for occurred in 2001 and 2004 and at that time, his command was aware of the civilian convictions. (Equity) The Applicant contends that he had two prior honorable enlistments, which should have been considered in determining the overall characterization of service at discharge.

Decision

Date : 20 1 1 020 3    Location: Washington D.C .       R epresentation :

By a vote of the Narrative Reason shall .
By a vote of the Characterization 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 governmental affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The A pplicant identified two decisional issue for the NDRB’s consideration . The NDRB completed a thorough review of the Applicant’s military service record, medical records, administrative separation package, the circumstances that led to his discharge, and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no 6105 retention-counseling warnings and no judicial or non-judicial punishments. Prior to the current period of service under review by the NDRB, the Applicant had honorably completed two active duty enlistment periods without any break in service and had received numerous awards and decorations as reflected in his official service record.

On 21 May 2009, the Applicant was n otified by his command that they were recommending he be separated a dministratively from the N aval service with an Under Other Than Honorable Conditions characterization of service for misconduct . In accordance with the Nav al Military Personnel Manual (MILPERSMAN), the Applicant was notified of a dual basis for the separation action : Article 1910-142 - Misconduct (C ommission of a S erious O ffense ) and Article 1910-144 - Misconduct (C ivilian C onviction ) . The Applicant was advised that the least favorable characterization of service at discharge was U nder O ther T han H onorable C onditions. When notified of the proposed separation proceedings using the administrative board notification procedure, the Applicant elected to waive his right to consult with qualified legal counsel and his right to request an administrative discharge board, and further elected not to provide any written statement to the Separation Authority.

The basis of the Command’s recommendation was a local criminal investigation conducted by Provost Marshal Office, White Sands Missile Test Range , New Mexico . During the investigation, it was determined that the Applicant was a registered sex offender in the State of California pursuant to a civilian conviction for violation of section 314.1 of the California Penal Code in May 2004. As part of his conviction as a sexual offender, the Applicant was required to comply with California Penal Code ( A rticle 290) and register as a sex offender and keep the state of California apprised of an y change in residency status.
The Applicant had failed to de-register with California and failed to register with the state of New Mexico and with the Army Installation at White Sands Missile Test Range - as was his responsibility to do so within 5 days of a change in his status. The Applicant had executed permanent change of station orders on 15 January 2009; the date of discovery at White Sands Missile T est Range was 15 May 2009. Base regulations (AR 27-10) required that the Applicant register with the base and that he further advise base housing of his status.

On 9 July 2009, t he Separation Authority concurred with the local commander, who recommended the Applicant be separated from the Navy by reason of M isconduct (C ommission of a S erious O ffense ) pursuant to A rticle 1910-142 and Misconduct (Civilian Conviction) pursuant to A rticle 1910-144 . The Separation Authority directed that the primary basis for separation be Misconduct ( Civilian Conviction ) (1910-144) and that the Applicant’s character ization of service at discharge be Under Other Than Honorable Conditions.

: (Decisional) ( ) PARTIAL . The Applicant contends that his discharge was improper in that the civilian conviction offenses that he was discharged for occurred in 2001 and 2004 and at that time, his command was aware of the civilian convictions.

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 provided no documentation to the board to rebut the government’s presumption of regularity .

Whenever a Sailor is involved in misconduct, as described in A rticle s 1910-14 2 and 1910-144 of the M ILPERSMAN, commanders are directed to process the S ailor for separation, unless rehabilitation and retention are warranted. The characterization of service for Misconduct normally shall be U nder O ther T han H onorable C onditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances. Moreover, despite a Sailor’s prior record of service, certain serious offenses, and civilian convictions , even though isolated, warrant separation from the N aval service in order to maintain proper order and discipline. The charge specified against the Applicant – violation of Article 92 of the UCMJ – is a serious offense , punishable by a punitive discharge (i.e., Bad Conduct) and confinement, if adjudicated by a special or general court-martial. The Applicant ’ s command opted not to pursue the punitive discharge for the violation of the UCMJ, instead choosing the more lenient administrative discharge process to address the Applicant’s misconduct. Additionally, t he Command further included the civilian conviction for indecent exposure a s the separation action as it is a lso a mandatory basis for proposing separation.

Specific to the Applicant’s issue is the fact that the civilian convictions occurred in 2001 and 2004, which were previous enlistment periods in which the Applicant had already received H onorable discharges. Further, the Applicant contends that at the time, his commands were aware of the civilian legal issues and had opted not to take any disciplinary or administrative action. The civilian conviction for indecent exposure required mandatory processing for separation. Given the serious nature of the Applicant’s conviction in May 2004 for indecent exposure and the Applicant’s statement that he had advised his chain of command, the NDRB determined that the local command likely k new about the conviction at the time it occurred and had failed to take the proper administrative actions required of them . In accordance with Article 1910-144 of the MILPERSMAN, the Applicant’s current command was limited to pursuing separation for erroneous enlistment; the civilian convictions identified by the command were in a previous enlistment period. The basis for erroneous enlistment was supported by the fact that the Applicant should not have been retained in the Naval service and would not have been re-enlisted had the Navy Personnel Command known about the civilian convictions and had the owning command taken the proper administrative actions. The NDRB determined that the basis for separation due to Misconduct (Civilian Conviction) was improper.

However, t he Applicant was notified of separation processing for two reasons. Article 1910-142 of the M ILPERSMAN provides a basis for separation of a Sailor for the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; and, (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. This provision of the MILPERSMAN further specifies that a military or civilian conviction is not required for discharge. The Applicant’s Commanding Officer determined that a preponderance of the evidence presented proved all the acts or omissions alleged in the notification letter , specifically that the Applicant had committed misconduct due to the commission of a serious offense by violati ng Article 92 of the UCMJ . Since the charge and specifications alleged against the Applicant would warrant a punitive discharge and confinement , if adjudicated by a special or general court-martial, the recommendation and process ing for administrative separation pursuant to Misconduct (Commission of a Serious Offense) was in accordance with the guidance contained in Article 1910-142 of the M ILPERSMAN .

Given t he unique circumstances of the Applicant’s case and the facts of record, the NDRB determined that the actions of the Separation Authority were improper; the basis of separation for Misconduct ( Civilian Convictio n ) was without proper authority . H owever, the notification and finding of Misconduct (Commission of a Serious Offense) as notified, was proper. The NDRB determined that partial relief was warranted ; t he appropriate and proper narrative reason for discharge was M isconduct (Commission of a Serious Offense).

: (Decisional) ( ) . The Applicant contends that he had two prior honorable enlistments, which should have been considered in determining the overall characterization of service at discharge . When the quality of a service member 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 N aval service. The serious nature of the Applicant’s misconduct warranted trial by special court -m artial , which carries with it confinement and punitive discharge if adjudicated by a special or general court-martial. The NDRB determined that the Applicant’s conduct during the enlistment period in question , which forms the primary basis for determining the character of his service at discharge , reflected acts or omissions that were significant departure s from the conduct expected of a service member of his paygrade . As such, t he NDRB determined that the awarded characterization of service was appropriate, proper, and equitable; an upgrade would be inappropriate. Relief denied.

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 narrative reason for separation shall change to , however, the awarded characterization of service shall .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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 | 2010_Navy | ND1000404

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