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NAVY | DRB | 2013_Navy | ND1300989
Original file (ND1300989.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20130410
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)        20060216 - 20060313     Active:   20060314 - 20090618

Period of Service Under Review:
 Date of Current Enlistment: 20090619     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20121005      Highest Rank/Rate: AM2  
Length of Service: Year(s) Month(s) 17 D ay(s)
 Education Level:        AFQT: 64
Evaluation M arks:         Performance: 4.3 ( 3 )      Behavior: 4.0 ( 3 )        OTA: 3.91

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     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:
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 06 0314 UNTIL 090618 ”
         
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        





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

Applicant’s Issues

 1.       The Applicant contends the allegations of misconduct are false , he is innocent of any charges , he was denied the right to appear at a court-martial, his Sixth Amendment rights were violated, his charges should not have been taken to an administrative separation board because they are felonies, and his command waited an undue amount of time before his separation board .
2.       (NDRB Issue) The Applicant’s Narrative Reason for Separation is incorrect.

Decision

Date: 20 1 3 1106             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. 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 standards of equity and propriety. The Applicant’s record of service included no adjudicated misconduct during his second enlistment. However, b ased on a preponderance of the evidence that he violated Uniform Code of Military Justice (UCMJ) Article 120 (Aggravated Sexual Assault and Wrongful Sexual Contact), 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 board voted 3-0 to separate for misconduct with an Under Other Than Honorab le Conditions characterization. The Separation Authority concurred with the board’s recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Sexual Perversion).

: (Decisional) ( ) . The Applicant contends the allegations of misconduct are false, he is innocent of any charges, he was denied the right to appear at a court-martial, his Sixth Amendment rights were violated, his charges should not have been taken to an administrative separation board because they are felonies, and his command waited an undue amount of time before his separation board. As a result of allegations of violating UCMJ Article 120, the Applicant was the subject of an Article 32 hearing to determine if enough evidence existed to prefer charges to a Special Court-Martial. The Investigating Officer stated, “Based on the evidence presented at the Article 32 Hearing, it is my opinion that while there is sufficient evidence to meet the relatively low bar for proceeding to Court-Martial, it is very unlikely that the government would be able to meet its burden at trial of proving the alleged offenses beyond a reasonable doubt. It is my recommendation that the Charge and its Specifications be withdrawn and dismissed and that this case be resolved through alternative means.” The Convening Authority subsequently decided not to prefer charges to a Special Court-Martial. The Applicant’s commanding officer then decided to handle the allegations through administrative means by notifying the Applicant of administrative separation processing. The Applicant did not have the right to appear at a court-martial. He never faced nonjudicial punishment charges and so never had the right to refuse those charges and demand court-martial. Also, his Sixth Amendment rights were not violated, because he never faced criminal prosecution. His case was handled administratively, not legally. Additionally, the fact that the allegations were felonies has no bearing on whether or not they can be adjudicated at an administrative separation board. The allegations involved violations of UCMJ Article 120, which are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and so warranted administrative processing for separation. Since the Applicant was notified that his commanding officer was going to recommend a characterization of service Under Other Than Honorable Conditions, the Applicant had the right to present his case before an administrative separation board, a right that he elected to exercise.



In accordance with Naval Military Personnel Manual Article 1910-142, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. When notified of administrative separation processing for Misconduct (Serious Offense), the Applicant elected his rights to consult with counsel, submit a written statement to the Separation Authority, and appear before an administrative separation board. The Applicant appeared before an administrative separation board, which determined by a 3-0 vote that a preponderance of evidence existed that the Applicant had committed misconduct and recommended separation Under Other Than Honorable Conditions. The Separation Authority and his Staff Judge Advocate concurred with the board’s findings and recommendations and ordered the Applicant to be discharged for Misconduct (Sexual Perversion). After a complete review of the records, the Applicant’s statement, his defense counsel’s Letter of Deficiency following his administrative separation board, the separation board proceedings, the results of the Article 32 hearing, and the Applicant’s service records, the NDRB determined he was provided full due process and all applicable rights. His misconduct was handled administratively, not legally, and his administrative discharge was warranted, proper, and equitable. Relief denied.

Issue 2: (NDRB Issue) (Decisional) (Equity) RELIEF WARRANTED. Block 28 (Narrative Reason for Separation) on the Applicant’s DD Form 214 states MISCONDUCT (SEXUAL PERVERSION). A review of the Applicant’s notification of separation proceedings, however, reveals that he was only recommended for administrative separation for MISCONDUCT (SERIOUS OFFENSE). While the NDRB determined, as explained in Issue 1, that he was properly and equitably discharged administratively, the Narrative Reason for Separation was improperly assigned for sexual perversion. Since the Applicant was only notified for Commission of a Serious Offense, the NDRB voted 5-0 that the Applicant’s Narrative Reason for Separation should change to MISCONDUCT (SERIOUS OFFENSE). Relief granted.

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 but the narrative reason for separation shall change to . 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.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 36, effective 18 August 2011 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 .


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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