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NAVY | DRB | 2010_Navy | ND1000813
Original file (ND1000813.rtf) Auto-classification: Denied

ex-SA, USN
Current Discharge and Applicant’s Request
Application Received: 20100201
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20021031 - 20021105     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021106     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050401      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 2. 5 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.16

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20031024 :       Article 1 07 ( False official statement)
         Article 134 (Impersonating a commissioned, warrant, noncommissioned, or petty officer or agent or official)
         Awarded : Susp ended:

- 20050225 :       Article 125 (Sodomy)
         Article 134 (Pandering and prostitution)
         Article 134 (Soliciting another to commit an offense)
         Article 1 20 (Indecent exposure) (corrected – proper charge under UCMJ is Article 120, not Article 134)
         Awarded : Susp ended:

S CM :    SPCM:    C C :     

Retention Warning Counseling : None Found in Service Record

Administrative Corrections to the Applicant’s DD 214

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

          “ MILPERSMAN 1910-142 ”
        
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. 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 s 107, 120, 125, and 134.




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

Applicant’s Issues

 1.        Nondecisional issues : The Applicant seeks an upgrade in the characterization of his discharge and a change to his reentry code in order to further his prospect of reenlistment in the United States Army , thereby f acilitat ing a better opportunity to provide for himself and his family and be a more productive member in society .

2.       Decisional issues : The Applicant contends that he was young and immature at the time of his misconduct and has since matured and understands the opportunity presented to him; as such, he contends that an upgrade in the characterization of his service is warranted.

Decision

Date : 20 1 1 0331    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 NDRB 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 Applicant identified one decisional issue for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service reflects entry into the military without waiver to enlistment standards. He enlisted at age 2 0 as an E-1 with a four -year contract under the Seaman Apprenticeship Program. The Applicant completed two years and four months of service o f enlistment contract; he was separated involuntarily prior to the end of his enlistment period due to Misconduct (Commission of a Serious Offense) as defined in Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN).

During his enlistment period, the Applicant received no NAVPERS 1070/613 retention-counseling warnings of record, but his service record was marred with two nonjudicial punishments for violations of the following Articles of the Uniform Code of Military Justice (UCMJ):
•         Article 107 (False official statement)
•         Article 125 (Sodomy)
•         Article 134 (Impersonating a commissioned, warrant, noncommissioned, or petty officer or agent or official)
•         Article 134 (Pandering and prostitution)
•         Article 134 (Soliciting another to commit an offense)
•         Article 120 (Indecent exposure) (corrected – proper charge under UCMJ is Article 120, not Article 134 as cited on NAVPERS 1070/613 ) .

In accordance with Article 1910-142 of the MILPERSMAN, processing for separation is mandatory for any deviant sexual behavior (lewd and lascivious acts; forcible heterosexual sodomy; indecent assault, acts, and/or exposure; or any child sexual abuse, possession of child pornography, or incestuous relationships). T he Applicant was determined to be guilty in a nonjudicial punishment of indecent exposure , and so processing for involuntary administrative separation was mandatory.

The Applicant ’ s official service record does not contain a complete copy of the administrative discharge package . In its absence , the NDRB presumed regularity of governmental affairs in that the Applicant’s c ommand properly afforded him his rights in accordance with the MILPERSMAN regarding involuntary separation from the Service. Though the NDRB was unable to verify the Applicant’s election of rights due to the absence of a complete copy of the administrative separation package, the Applicant’s Form DD-214 (block 26) documents a separation code of “HKQ.” This separation code indicates specifically that the Applicant was discharged for the commission of a serious offense and that he was afforded his right to an administrative discharge hearing board, but elected to waive that right.

Issue 1: (Non-Decisional). The Applicant seeks an upgrade in the characterization of his discharge to further his prospect of reenlistment in the United States Army in order to facilitate a better opportunity to provide for himself and his family and be a more productive member in society . The NDRB cannot upgrade discharges to former service members solely to aid them in becoming more productive members of society, to improve employment opportunities, or because a specified period of time has elapsed. Rather, the NDRB examines the propriety and the equity of an Applicant’s discharge and is authorized to change the characterization of that service or the reason for discharge if factors of equity or propriety warrant such change. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is prohibited from changing a reenlistment code. Neither a less than fully honorable discharge, nor an unfavorable "RE" code are, in themselves, bars to reenlistment; a request for waiver of conditions may be submitted through a recruiter during the processing of a formal application for enlistment. Only the Board for Correction of Naval Records can make changes to reenlistment codes. The Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149 to address reenlistment code issues.

: (Decisional) ( ) . The Applicant contends that he was young and immature at the time of his misconduct and that he has since matured and understands the opportunity that was presented to him; as such, he contends that an upgrade in the characterization of his service at dis charge is warranted. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. In accordance with the MILPERSMAN, service members may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and that the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related military offense. Violation of Article 107 ( F alse O fficial S tatements), Article 120 (Indecent Exposure) , Article 125 (Sodomy), and Article 134 (General - as specified in the Applicant’s NJP ) of the UCMJ warrant s punitive discharge and confinement for up to 5 year s if adjudicated at trial by special or general court-martial. Therefore, the requirement for consideration as a serious offense for separation was established by the command .

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the service. The Applicant was subject to two nonjudicial punishments in which he was determined to have committed misconduct that required mandatory processing for separation , regardless of grade or time in service . This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge , and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s c ommand did not pursue a punitive discharge , but instead opted for the more lenient administrative discharge process . The Applicant w as afforded the right to seek legal counsel and to present his case before a n administrative discharge board ; he chose not to exercise his right to a hearing before an administrative discharge board.

While the Applicant may feel his youth or immaturity was the underlying cause of his misconduct, he provided no documentation or explanation in support of this claim. The NDRB recognizes that many of our s ervice m embers are young at the time they enlist for service but still manage to serve honorably. While it is understood that some members may be less mature than others may, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason to justify misconduct.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge 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 Naval Service.

Based on a review of the evidence and the circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on MISCONDUCT (Commission of a Serious Offense) as the basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied; the narrative reason for discharge shall not change. Based on the Applicant’s record of service and the serious nature of the misconduct, the NDRB determined

that the Applicant engaged in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. As such, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade is not appropriate and that relief is not warranted; therefore, the character of the discharge shall not change. Relief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB 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 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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