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NAVY | DRB | 2010_Navy | ND1001652
Original file (ND1001652.rtf) Auto-classification: Denied

ex-MA3, USN
Current Discharge and Applicant’s Request
Application Received: 20100622
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)        20020829 - 20030224     Active:   20030225 - 20070222

Period of Service Under Review:
Date of Current Enlistment: 200 7 0 223     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081129      Highest Rank/Rate: MA2
Length of Service : Y ear ( s ) M onth ( s ) 7 D a y ( s )
Education Level:        AFQT: 82
Evaluation M arks:         Performance: 3.9 ( 7 )      Behavior: 3.3 ( 7 )        OTA: 3.25

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20080903 :      Article (Failure to obey an order or regulation - 5 specifications : 3 counts of sexual conduct and 2 counts of fraternization)
         Article 120 (Wrongful sexual contact)
         Awarded: Suspended:

S CM :    SPCM:    C C :      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, GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, IRAQ CAMPAIGN MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, HUMANITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST, ENLISTED AIR WARFARE SPECIALIST, RIFLE EXPERT M EDAL, PISTOL EXPERT MEDAL ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030225 UNTIL 070222 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.



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

Applicant’s Issues

 1. The Applicant contends his discharge was based on false pretenses and due to gross dereliction of duty by the investigating team.

Decision

Date: 20110 823 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete 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 included for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey an order or regulation - 5 specifications: 3 counts of sexual conduct and 2 counts of fraternization) and Article 120 (Wrongful sexual contact). Based on the offenses committed by the Applicant, command mandatory administratively processed for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant exercised rights to consult with a qualified counsel and to request an administrative board , but waived his rights to submit a written statement for consideration by the separating authority . The Applicant appeared before an A dministrative S eparation B oard (ASB) on 11 October 2008. The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Navy with an Under Other Than Honorable Conditions characterization. The command and separating authority approved the ASB’s recommendations and discharged him accordingly.

: (Decisional) ( ) . The Applicant contends his discharge was based on false pretenses and due to gross dereliction of duty by the investigating team. T he NDRB is not an investigative body, and allegations of racial prejudice, conflict of interest within the investigating team , and wrongful withholding of exculpatory evidence should have been made to an appropriate law enforcement organization or the Naval Inspector General ’ s Office.

D espite a Sailor’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline. An Under Other Than Honorable conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a Sailor.
 The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. The Applicant was provided the opportunity to present his case before an ASB, which he exercised on 11 October 2008. As mentioned above, the ASB considered all testimony and facts in his case and chose to unanimously recommend separation of the Applicant with an Under Other Than Honorable Conditions discharge. The Applicant’s counsel filed a Letter of Deficiency on 26 October 2008 to the Commanding Officer. The Letter of Deficiency was reviewed by the Assistant Command Judge Advocate to ensure no impropriety in law and fact was evident . The Applicant’s Commanding Officer ultimately deemed the issues brought forward in the Letter of Deficiency to be without merit. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge. The NDRB found no evidence of impropriety, inequity , or procedural irregularities in the Applicant's discharge. The Applicant was afforded appropriate due process during the processing of his case. His misconduct is clearly documented. Thus, the NDRB determined that the Applicant’s discharge was proper and warranted. 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 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 Revie ws and Post-Service Conduct .

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 23, effective 12 June 2008 until 9 November 2009, 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 s of the UCMJ, Article s 92 and 120.


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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