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NAVY | DRB | 2011_Navy | ND1101304
Original file (ND1101304.rtf) Auto-classification: Denied

ex-AM2, USN
Current Discharge and Applicant’s Request
Application Received: 20110426
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       HK B

Summary of Service
Prior Service:
 Inactive:         US N R (DEP)        19980830 - 19990912     Active:   19990913 - 20030716 HON

Period of Service Under Review:
 Date of Current Enlistment: 20030717     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060131      Highest Rank/Rate: AM2
Length of Service: Year(s) Month(s) 14 D ay(s)
 Education Level:        AFQT: 44
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 2.7 ( 4 )        OTA: 3.36

Awards and Decorations ( per DD 214):      Pistol (2) CGMUC (2) EAWS
Periods of UA /C ONF :

NJP :    S CM :   SPCM:             Retention Warning Counseling:

C C :
- 20050520 :       Offense: Unlawful sexual intercourse-minor more than 3 yrs younger
         Sentence : No sex registration required, probation for 2 years, charge could be reduced to misdeme a nor after successfully completing probation. [Extracted from Attorney’s letter dated 20051011]

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, 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.       The Applicant contends his discharge was based on an isolated incident with no other adverse action. He further contends that his discharge wa s based on erroneous information provided to Navy Personnel Command (NPC) by the Fleet and Family Support Center (FFSC) .

Decision

Date: 20 1 2 0614             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 g overnment al 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 did not contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers’ nonjudicial punishments, or trial by courts-martial. The record did reflect the Applicant was the subject of a Family Advocacy Program (FAP) investigation by F FSC San Diego for alleged intrafamilial child sexual abuse and a civil conviction for unlawful sexual intercourse with a minor more than 3 years younger. Based on the offense committed by the Applicant, command administratively processed for separation. Processing for administrative separation is mandatory for child sexual abuse or incestuous relationships that equate to misconduct under Uniform Code of Military Justice (UCMJ) Article 120 . When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and submit a written statement, but waived his right to an administrative board .

The Applicant provided additional documentation for the NDRB’s consideration , to include : a sworn statement from his w ife at the time of the incident and San Diego Superior Court Pronouncement Order setting aside conviction/dismissal dated 18 August 2008 . The Applicant also provided post-service documentation to be considered by the Board, to include : an Aviation/Aerospace Safety certificate, Associate in Science in Professional Aeronautics , and Bachelor of Science in Professional Aeronautics (Cum Laude), all from Embry Riddle Aeronautical University.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident with no other adverse action. He further contends that his discharge was based on erroneous information provided to NPC by the F FSC. 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. A careful review of the documents submitted by the Applicant indicates his in itial charge of having unconsens ual sex with a child was substantially reduced by the San Diego District Attorney (DA) on 20 June 2005 based on the results of an investigation to ha ving unlawful sexual intercourse with a minor more than 3 years younger than the Applicant . The Applicant was convicted and awarded probation . On 04 August 2005 , the FAP Case Review Committee ( C RC ) determined the case to be substantiated for child sexual abuse . However, the Applicant argued and proved to the NDRB that based on MILPERSMAN Article 1910-142, the victim did not meet the age requirement to be characterized as a child, and she was not related to him by blood or as a step child. T h e information develop ed from the San Diego DA’s investigation w as not taken into account by his FAP CRC , who used the allegations of incestuous child sexual abuse as the basis for discharge in its recommendation to NPC . Subsequently, NPC used this incorrect information to authorize the discharge. It is the NDRB’s contention that had the CRC accurately characterized the victim by her age and taken into account the reduction of civilian charges based on new information as a result of the San Diego DA’s investigation , the Applicant would most likely not have been discharge d, considering that he had no previous adverse action s in his record of

service. Additionally, o n 18 August 2008, the San Diego Superior Court set aside the conviction and dismissed all charges against the Applicant . After a thorough review of the records, the Applicant’s post-service documentation , supporting documents, facts, and circumstances unique to this case, and taking into consideration his testimony, the NDRB discerned a n inequity in the discharge action. T he NDRB voted to upgrade the Applicant’s discharge to Honorable and to change the narrative reason for separation to Secreta r ial Authority.

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, facts, and circumstances unique to this case, and taking into consideration his testimony, the Board found the discharge was inequitable . Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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