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NAVY | DRB | 2010_Navy | ND1001366

Original file (ND1001366.rtf) Auto-classification: Denied

ex-OS3, USN

Current Discharge and Applicant’s Request

Application Received: 20100507

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)        20040707 - 20050614     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050615     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100121      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 07 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 3.2 ( 5 )        OTA: 3.16
Awards and Decorations ( per DD 214):      FLoC

Periods of UA /C ONF :

NJP :
- 20090430 :      Article 120 (Rape, sexual assault, and other sexual misconduct) , 2 specifications
         Specification 1: Touching BMSN’s genitals , o/o 20090104
         Specification 2: Touching SN’s genitals , o/o 20090104
         Article (Disorderly conduct, drunkenness) , o/o 20090104
         Awarded: (to E-4) Suspended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

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), Change 29, effective 10 November 2009 until Present,
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 .

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

Applicant’s Issues

1. Applicant contends his discharge was improper and inequitable.

Decision

Date: 20 1 1 05 13 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 identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service include d for o f the Uniform Code of Military Justice: Article 120 ( Rape, sexual assault, and other sexual misconduct , specific ally aggravated sexual assault and wrongful sexual contact in touching the genitals of two E-3 personnel while on liberty , o/o 4 Jan 2009 ) and Article 134 ( Disorderly conduct, drunkenness, o/o 4 Jan 2009 ) . Based on the Article 1 20 violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 22 Jul 2009, t he Administrative Separation Board found via a preponderance of the evidence : (by 3-0 vote) the App licant had committed Misconduct-Sexual Perversion; (by 3-0 vote) the Applicant had committed Homosexual Conduct ( Act s) ; (by 3-0 vote) the Applicant should be separated from Naval Service; and (by 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge. The Applicant was separated from the Navy on 21 Jan 2010 due to Misconduct-Sexual Perversion.

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable. The Board conducted a detailed review of the Applicant’s entire service record to include the circumstances leading up to his 30 Apr 2009 Captain’s Mast (NJP) as evidenced in the 22 Jul 2009 Administrative Separation Board proceeding transcripts. Based on the corroborating testimonies of the victims, NCIS investigation reports, and statements of admission made by the Applicant, the Administrative Separation Board determined that he had in fact improperly touched the victims ( both E-3 s ) in a sexual manner without their expressed consent. More o ver, testimonial evidence shows that one of the victims was likely asleep or passed out during the uninvited sexual contact, which therefore warrant ed the charge of A ggravated S exual A ssault and Wrongful Sexual Contact due to the incapacitation of the victim. The Applicant states on his DD Form 2 93 that he provides “evidence of being not guilty of sexual assault . ” After reviewing the service record, the NDRB found no evidence to support the Applicant’s claim of being not guilty of the charges for which he was found guilty at NJP and then subsequently discharged for after proceedings of an A dministrative S eparation B oar d . Without any evidence to support the claim of impropriety, the Board found that the discharge was proper and in accordance with the applicable orders and directives in effect at the time of his separation. Based on the facts and circumstances surrounding the misconduct, the Applicant’s senior rank in relation to the victims , his length of service and experience, and the punitive punishments available (confinement from 1-20 years and a Bad Conduct or Dishonorable Discharge) if convicted at trial by courts-martial, the NDRB determined that the discharge was equitable per the standards set forth in the Naval Military Personnel Manual. 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 the administrative separation 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 for additional information.

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 | ND1001366

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