ex-ABFAR, USN

Current Discharge and Applicant’s Request


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

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20071217 - 20080219     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20080220    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20110406     Highest Rank/Rate: AOAN
Length of Service: Year(s) Month(s) 18 Day(s)
Education Level:        AFQT: 39
Evaluation Marks:        Performance: 3.60 (5)    Behavior: 2.60 (5)      OTA: 3.35

Awards and Decorations (per DD 214):    

Periods of UA:

NJP:

SCM:

- 20110303:      Article 120c (Other sexual misconduct) 3 specifications
         Specification 1: On diverse occasions from about 20101101 to about 20101108 wrongfully commit indecent conduct, to wit: watch through a cableway one or more female sailors undressing with the intent to excite his sexual desire.
         Specification 2: On or about 20101206 wrongfully commit indecent conduct, to wit: watch through a cableway one or more female sailors undressing with the intent to excite his sexual desire
         Specification 3: On or about 20101208 wrongfully commit indecent conduct, to wit: watch through a cableway one or more female sailors undressing with the intent to excite his sexual desire
         Sentence: (DATES NFIR)

SPCM:

CC:

Retention Warning Counseling:







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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 .

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

Applicant’s Issues

1.       The Applicant wants an upgrade of his discharge for better employment opportunities.
2.       The Applicant contends his discharge is inequitable because it is based on an isolated incident that does not reflect his otherwise Honorable character.
3.       The Applicant wants the narrative reason for his discharge to be changed to “disorderly conduct.”

Decision

Date: 20150805            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 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 for of the UCMJ: Article 120c (Other sexual misconduct; 3 specifications). The Applicant’s command had referred the charges for indecent acts to a special court-martial (SPCM); however, the Applicant voluntarily requested to plead guilty at a lesser SCM and waive his right to an administrative board in order to avoid the possibility of a punitive discharge and federal conviction.

: (Nondecisional) The Applicant wants an upgrade of his discharge for better employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) () . The Applicant contends his discharge is inequitable because it is based on an isolated incident that does not reflect his otherwise honorable character. In accordance with the MILPERSMAN, 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. The Applicant was charged with violation of Article 120c and referred to a SPCM for trial. Instead of SPCM, the Applicant voluntarily requested a pre-trial agreement to plead guilty at SCM to having committed indecent acts against female shipmates on several occasions aboard ship and without their knowledge. The Applicant’s request was granted, and he waived his right to contest his discharge from the Navy at an administrative separation board. Based on the Applicant’s own admissions, 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 that was harmful to his fellow shipmates, therefore the awarded characterization of service was warranted. Relief denied.

: (Decisional) () . The Applicant wants the narrative reason for his discharge to be changed to “disorderly conduct.” Although the Applicant may feel that there is precedence for his narrative reason for separation from the Navy to be changed to disorderly conduct, Navy regulations for separation direct the narrative reason noted on the DD Form 214. 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

administratively processed for separation for his misconduct. No other narrative reason for separation more appropriately describes the Applicant’s reason for separation; therefore, the NDRB determined no change was warranted. 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 (SEXUAL PERVERSION).

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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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