Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1400910
Original file (ND1400910.rtf) Auto-classification: Denied

ex-MA3, USN
Current Discharge and Applicant’s Request
Application Received: 20140423
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       OR
                 
        
Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19951207 - 1996081 8     Active:   19960819 - 19990215
                                    19990216 - 20010719
                                    2001 0720 - 20040805
Period of Service Under Review:
 Date of Current Enlistment: 200 40806     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200 50706      Highest Rank/Rate: MA2
Length of Service: Year(s) Month(s) 0 D ay(s)
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 2.0 ( 2 )        OTA: 2.0

Awards and Decorations ( per DD 214):      Rifle (2) (2)

Periods of UA /C ONF :

NJP :

- 2 0050114 :      Article (General Article , 2 specifications)
         Specification 1: Adultery, on or about 20041231, wrongfully had sexual intercourse with a married woman not his wife.
         Specification 2: Indecent Acts, on or about 20041231, wrongfully commit an indecent act by having sexual intercourse in a public stairway.
         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: “ NATIONAL DEFENSE SERVICE MEDAL , GOOD CONDUCT MEDAL , OVERSEAS SERVICE RIBBON , GLOBAL WAR ON TERRORISM SERVICE MEDAL , RI FLE MARKSMANSHIP RIBBON, ENLISTED SURFACE WARFARE SPECIALIST , ARMED FORCES EXPEDITIONARY MEDAL (2) , NAVY UNIT COMMENDATION , NAVY "E" RIBBON , SEA SERVICE DEPLOYMENT RIBBON (2) ”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 960819 UNTIL 0 4 0 8 05 ”
         
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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:        

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 134 .


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

Applicant’s Issues

 1.       The Applicant seeks to improve his employment opportunities.
2.       The Applicant would like his RE Code changed from RE-4 to RE-1.
3 . The Applicant contends his misconduct was an isolated incident in 8 years and 10 months of service.
 4 . The Applicant contends his narrative reason should be Completion of Required Service or Alcohol Rehabilitation Failure instead of Sexual Perversion.
5.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 4 0911    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 in his fourth enlistment included for o f the Uniform Code of Military Justice (UCMJ): Article 134 ( General Article, 2 specifications) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant ex ercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Administrative Separation Board found by a vote of 3-0 that the Applicant committed Misconduct (Serious Offense) and was an Alcohol Rehabilitation Treatment Failure but voted 3-0 to recommend to retain the Applicant in service. The Applicant’s Command ing Officer agree d with the board’s finding s of misconduct and rehabilitation failure but did not agree that the Applicant should be retained in the Navy and forwarded this recommendation to the Chief of Naval Personnel. Commander, Navy Personnel Command then sent the recommendation along with their endorsement to the Assistant Secretary of the Navy (Manpower & Reserve Affairs), who approved the recommendation s to discharge the Applicant for Misconduct (Sexual Perversion) with a General (Under Honorable Conditions) characterization of service.

 : (Nondecisional) The Applicant seeks to improve his employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2: (Nondecisional) The Applicant would like his RE Code changed from RE-4 to RE-1. 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 Board for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 8 years and 10 months of service. The Applicant received Honorable characterizations of service for his first three enlistments from August 1996 to August 2004. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, he was found guilty of two specifications of violating UCMJ Article 134 and was processed for administrative separation. Since t he Applicant was


administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service in his fourth enlistment, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his narrative reason should be Completion of Required Service or Alcohol Rehabilitation Failure instead of Sexual Perversion. T he Applicant pled guilty to two specification s of Article 134 at NJP on 14 January 2005. The incident that led to the NJP was also an alcohol - related incident. The Applicant had previous ly been treated for a lcohol dependence i n November 1999 and again, after a self- referral , i n October 2003. The Applicant was notified of administrative separation processing for Misconduct (Serious Offense) and Alcohol Rehabilitation Failure, elected all of his rights, appeared before an Administrative Separation Board, and had his recommendations reviewed all the way up to the Assistant Secretary of the Navy (Manpower & Reserve Affairs), who decided he should be discharged for Misconduct (Sexual Perversion) with a General characterization of service. Since the Applicant did not finish his enlistment, the Narrative Reason for Separation of “Completion of Required Service” is not proper. However, the NDRB determined that while his discharge was proper, it would be more equitable to change his Narrative Reason for Separation to “Alcohol Rehabilitation Failure,” as it is more descriptive of why he was discharged from the Navy. Relief granted.
Issue 5: (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, evidence of post-service sobriety and volunteer activities, and 26 character references. 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 Board determined 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 but the N arrative R eason for S eparation 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.


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

Similar Decisions

  • NAVY | DRB | 2009_Navy | ND0901806

    Original file (ND0901806.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB)DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2007_Navy | ND0700316

    Original file (ND0700316.rtf) Auto-classification: Denied

    Discharge Process Date Notified: 20050524Reason for Discharge:Least Favorable Characterization: Date Applicant Responded to Notification:20050524Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Commanding Officer Recommendation (date): Separation Authority (date): COMMANDING OFFICER, USS HARRY S. TRUMAN (CVN 75) (20060616)Reason for discharge directed: Characterization directed: Date Applicant...

  • NAVY | DRB | 2011_Navy | ND1101722

    Original file (ND1101722.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks a change to his RE Code.2. Representation: none 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...

  • NAVY | DRB | 2015_Navy | ND1501046

    Original file (ND1501046.rtf) Auto-classification: Denied

    Any member of the Navy, having committed indecent acts and determined by the Separation Authority to be the primary reason for administrative separation, will be discharged under authority for the commission of a serious offense, and the narrative reason for separation as displayed on the DD Form 214 will be “Misconduct (Sexual Perversion).” The Applicant pleaded guilty at SCM to violations of Article 120c (Other sexual misconduct; 3 specifications), and was Summary: After a thorough review...

  • NAVY | DRB | 2008_Navy | ND0801032

    Original file (ND0801032.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2013_Navy | ND1300989

    Original file (ND1300989.rtf) Auto-classification: Denied

    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. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and...

  • NAVY | DRB | 2008_Navy | ND0800855

    Original file (ND0800855.rtf) Auto-classification: Denied

    From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The record reflects the Applicant was administratively processed for misconduct due to the commission of as serious offense and provided the opportunity to present his case before an administrative separation board. ” Additional Reviews : Subsequent to a document review, former members are eligible...

  • NAVY | DRB | 2008_Navy | ND0801955

    Original file (ND0801955.rtf) Auto-classification: Denied

    The Applicant should understand that the basis of his separation, “commission of a serious offense (sexual perversion)”, does not require adjudication by judicial or non-judicial proceedings. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. If a former member has been discharged for more than 15 years, has already been granted a...

  • NAVY | DRB | 2009_Navy | ND0901936

    Original file (ND0901936.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Isolated incident. Representation: 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...

  • NAVY | DRB | 2010_Navy | ND1001366

    Original file (ND1001366.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the administrative separation 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. ” Additional Reviews : After a document review has been...