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NAVY | DRB | 2012_Navy | ND1200213
Original file (ND1200213.rtf) Auto-classification: Denied

ex-IT1, USN
Current Discharge and Applicant’s Request
Application Received: 20111103
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 ANG     1989 0930 - 1990 0311     Active:            19930920 - 19971206

Period of Service Under Review:
Date of Current Enlistment: 19971207     Age at Enlistment:
Period of E nlistment : Years 43 MONTHS Extension
Date of Discharge: 20070608      Highest Rank/Rate: IT1
Length of Service: Y ear( s ) M onth( s ) 02 D a y ( s )
 Education Level:        AFQT: 53
Evaluation M arks:         Performance: 4.0 ( 11 )     Behavior: 3.4 ( 12 )       OTA: 3.49

Awards and Decorations ( per DD 214):      Rifle Pistol (4) M OVSM ESWS

Periods of UA /C ONF : UA : 20070422-20070608, 48 days / CONF:

NJP :     S CM :    SPCM:    Retention Warning Counseling:    CC:

CIVIL ARREST:

- 20070323 :      Charges: Multiple charges of sexual abuse of a child against his three adopted daughters . [Details extracted from Commander, Strategic Communications Wing 1 dated 20070510. Date extracted from Commanding Officer’s letter dated 20070509.]

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “93 SEP 20”
         “ 13 07 03 ”
          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 930920 UNTIL 971206 ”
          “ ”
          “2007APR22 TO 2007JUN08”
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), 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 seeks VA medical care for his Klinefelter’s Syndrome.
 2 .        The Applicant contends his discharge was based on civilian charges , and he was discharged 18 months prior to his conviction.
3 .       The Applicant contends his entire 165 months of service or at least his achievements during his current enlistment should have been considered .
4 .        The Applicant contends his medical condition of Klinefelter’s Syndrome and subsequent testosterone treatment contributed to his misconduct.
 5.       The Applicant contends he was advised to waive an Administrative Separation Board (ASB) so there would be no interruption of benefits for his family. He did not realize the discharge would be processed and approved after the ASB hearing.
Decision

Date : 20 1 2 1119             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’s record of service included one civilian arrest for m ultiple charges of sexual abuse of a child against his three adopted daughters . Based on the offense s committed by the Applicant, command administratively processed for separation. Based on the child sexual abuse, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant waived rights to consu lt with a qualified counsel and request an administrative board but exercised his right to submit a written statement.

: (Nondecisional) The Applicant seeks VA medical care for his Klinefelter’s Syndrome. 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.

: (Decisional) ( ) . The Applicant contends his discharge was based on civilian charges , and he was discharged 18 months prior to his conviction. A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence . C harges of sexual abuse of a child , the offense s for which the Applicant was arrested , are covered under Article 1 20 of the UCMJ and would warrant an unfavorable 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. Based on his arrest, his command had a preponderance of the evidence that he committed the offenses but opted for the more lenient administrative discharge instead of referring the Applicant to a court-martial . The NDRB found the characterization of the Applicant’s discharge equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.






: (Decisional) ( ) . The Applicant contends his entire 165 months of service or at least his achievements during his current enlistment should have been taken into account. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 120 is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service. The Applicant received an Honorable discharge for his enlistment from September 1993 to December 1997. In his current enlistment, however, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his medical condition of Klinefelter’s Syndrome and subsequent testosterone treatment contributed to his misconduct. Although the Applicant was on testosterone medication for Klinefelter’s Syndrome , the NDRB determined his medical condition and testosterone treatment do not mitigate or absolve him of his misconduct. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

Issue 5: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he was advised to waive an ASB so there would be no interruption of benefits for his family. He did not realize the discharge would be processed and approved after the ASB hearing. The NDRB conducted an extensive review of the administrative separation process. The Applicant was notified, in writing, of his rights to consult with legal counsel, submit a statement to the Separation Authority, and appear before an Administrative Separation Board. The Applicant, in writing, exercised his right to make a statement but declined to consult with legal counsel and request an ASB. The NDRB determined the Applicant was properly notified of his rights and that there was no impropriety or inequity in the administrative separation processing. 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 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), 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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