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NAVY | DRB | 2012_Navy | ND1201303
Original file (ND1201303.rtf) Auto-classification: Denied

ex-EN1, USN
Current Discharge and Applicant’s Request
Application Received: 20120522
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)        19970416 - 19970716     Active:            19970717 - 20011015 HON
                                    USN      20011016 - 20080710 HON
Period of Service Under Review:
Date of Current Enlistment: 20080711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100811      Highest Rank/Rate: EN1
Length of Service: Y ear( s ) M onth( s ) 01 D a y ( s )
 Education Level:        AFQT: 31
Evaluation M arks:         Performance: 4.3 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.95

Awards and Decorations ( per DD 214):      Rifle Pistol (4) (3)

Period of UA : 20100518 - 20100528, 10 days (In Hands of Civil Authorities) / C ONF :

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

CIVIL ARREST:

- 20100505 :       Charges: S exual abuse of a child.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ 13 00 05 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:        “ NAVY “E” RIBBON (2), NAVY GOOD CONDUCT MEDAL (4), NATIONAL DEFENSE SERVICE MEDAL,          GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE     MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), NAVY RIFLE EXPERT MEDAL, NAVY PISTOL   EXPERT MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, NAVY AND MARINE     CORPS ACHIEVEMENT MEDAL (3), LETTER OF COMMENDATION, ENLISTED SURFACE WARFARE    SPECIALIST ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM       970717 UNTIL 080710 ”
         “ 18MAY10 TO 28MAY10 ”

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 29, effective 10 November 2009 until 17 August 2011, 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 psychological health was affected by working conditions at his command and led to his arrest.
2.       The Applicant contends h is command did not help him with his family problems and divorce.
3 .       The Applicant contends the Administrative Separation Board made its recommendations based on false evidence and in haste , and there was a possible b ias in the command climate against him .
4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 3 0314             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included one civilian arrest for sex ual abuse of a child. Based on the civilian arrest, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The A dministrative Separation B oard found by a vote of 3-0 that a preponderance of the evidence supported the accusation and the board recommended the Applicant be separated Under Other Than Honorable Conditions . The Separati on Authority concurred with the findings of the board and discharged the Applicant for Mi sconduct (Sexual Perversion).

: (Decisional) ( ) . The Applicant contends his psychological health was affected by working conditions at his command and led to his arrest. While the Applicant may feel that his work environment, chain of command, and stress were contributing factor s to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. The NDRB recognizes that serving in the military is challenging ; however, most service members adjust to the challenges and do not commit serious misconduct . In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. After a complete review of the records and documentation submitted by the Applicant, the NDRB determined his working conditions did not mitigate his misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his command did not help him with his family problems and divorce. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s contention was not a mitigating factor in his misconduct and does not warrant an upgrade of his discharge . Relief denied.

: (Decisional) ( ) . The Applicant contends the Administrative Separation Board made its recommendations based on false evidence and in haste, and there was a possible bias in the command climate against him. A service member 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. In the Applicant’s case, his civilian arrest equated to a violation of UCMJ Article 120, which could have resulted in a punitive discharge as the result of a Special or General Court-Martial. A civil conviction was not required before starting the administrative separation process. When

notified of separation processing, t he Applicant elected his right to appear before an A dministrative S eparation B oard. The record shows he was able to present his evidence and testify on his own behalf. The members of the board heard his testimony , reviewed the evidence presented, and voted 3-0 that a preponderance of the evidence supported the allegations against him, and they recommended he be separated Under Other Than Honorable Conditions for Misconduct (Sexual Perversion). The Applicant did not provide any evidence to refute the presumption of regularity on the part of his command or on the part of his A dministrative Separation Board. After a complete review of the records and documentation submitted by the Applicant, the NDRB determined no impropriety or inequity in the separation proceedings and discharge characterization or narrative reason for separation. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers 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. The Applicant provided a personal statement, four character references, proof of volunteer activities, and statements from two mental health counselors. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he NDRB determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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