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NAVY | DRB | 2015_Navy | ND1500701
Original file (ND1500701.rtf) Auto-classification: Denied

ex-AM1, USN

Current Discharge and Applicant’s Request
Application Received: 20150219
Characterization of Service Received:
Narrative Reason for Discharge:
Reenlistment Code:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive:        USNR (DEP)       19900721 - 19910701     Active:  19910702 - 19980908
                           Active:  19980909 - 20060517

Period of Service Under Review:
Date of Current Enlistment: 20060518     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20080718      Highest Rank/Rate: AM1
Length of Service: Year(s) Month(s) 01 Day(s)
Education Level:         AFQT: 45
Evaluation Marks:        Performance: 3.83 (12)   Behavior: 3.75 (12)      OTA: 3.70

Awards and Decorations (per DD 214):     (2) (5) (4) (2) (3) (2) (2)

Periods of UA/CONF:

DISCHARGED IN ABSENTIA

NJP:

SCM:

SPCM:

CC:

- 20070116:      Offense 1: Sexual battery by fraudulent representation (victim unaware) 1 count
         Offense 2: Lewd or lascivious acts with child under 14 years of age by force or fear – 2 counts
         Offense 3: Sexual penetration with foreign object by force/fear – 2 counts
         Sentence: 25 years in State Correctional Facility

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 (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, GOOD CONDUCT MEDAL (5), SEA SERVICE DEPLOYMENT RIBBON (4), KUWAIT LIBERATION MEDAL, NAVY "E" RIBBON (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), ENLISTED AVIATION WARFARE SPECIALIST INSIGNIA, ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA, NAVY UNIT COMMENDATION (2), GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION (2)”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910702 UNTIL 060517”
         “”

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:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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.



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

Applicant’s Issues

1. The Applicant contends his DD214 has numerous errors and requests a corrected DD214.
2. The Applicant contends his service was Honorable and he is accepts full responsibility for his actions.

Decision

Date: 20150430            Location: Washington D.C.        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 regularity in the conduct of governmental 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 Civil Conviction for sexual battery by fraudulent representation one count, lewd or lascivious acts with a child 2 counts, and sexual penetration with a foreign object by force/fear 2 counts. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant contends his DD214 has numerous errors and requests a corrected DD214. In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. If errors are identified, NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed. It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record.

: (Decisional) () . The Applicant contends his service was Honorable and he is accepts full responsibility for his actions. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed offenses alleged, and that separation from the
Navy was appropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE). 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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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