ex-AM1, USN
ND06-00927

Current Discharge and Applicant’s Request:

Application Received:  				20060705     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	CNATTU VIRGINIA BEACH, VA

Applicant’s Request:
	Narrative Reason change to: 		not requested
	Characterization change to:		
	Review Requested:			
Representation:  					 designated

Decision:

Date of Decision:					20070426     
The Discharge shall remain:			
						
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19900223 - 19900402		COG
Active:   USN		               		19900403 - 19950517		HON
						19950518 – 19980604		HON	
						19980605 – 20000226		HON
						20000227 – 20020214		HON
						20020215 – 20041129		HON

Period of Service Under Review:
Date of Enlistment:  				20041130     
Years Contracted:  				;        
Date of Discharge:				20050429
Length of Service:				00  Yrs  05  Mos  00  Days
Time Lost During This Period:			      
						        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						57
Highest Rate/Rank:				AM1

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			4.0 (1)  1.0 (1)  3.43
	
Awards and Decorations (as listed on the DD Form 214):
NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (4), JOINT MERITORIOUS UNIT AWARD, NAVY UNIT COMMENDATION (2) MERITORIOUS UNIT COMMENDATION (3), NAVY "E" RIBBON (2), FOURTH GOOD CONDUCT MEDAL FOR PERIOD ENDING (SIC), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, SOUTHWEST ASIA SERVICE MEDAL (3), GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (5), NATO MEDAL, KUWAIT LIBERATION MEDAL (SAUDI ARABIA), KUWAIT LIBERATION MEDAL (KUWAIT), ENLISTED AVIATION WARFARE SPECIALIST BREAST INSIGNIA, ENLISTED SURFACE WARFARE SPECIALIST BREAST INSIGNIA.  

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040125:	NAS Oceana, VA informed Commander, Navy Region Mid-Atlantic via naval message that Applicant suspected of molesting daughter on 040123.  Fled state and in custody in North Carolina.  Will be extradited to Virginia Beach, VA Monday 040126.

20040311:	CNATTU informed NAVPERSDEVCOM via naval message that Applicant accused by spouse on 040310 of sexually molesting step-daughter over an unknown period of time.  Initiated investigation.

20050311:	Applicant issued Military Protective Order.

20050315:	Applicant arrested and charged by Virginia Beach Police Department with one count of Virginia Statue 18.2-67.3 (Aggravated Sexual Battery) and one count of 18.2-370-1 (Custodial Indecent Liberties with a Minor).  Applicant is incarcerated without bond awaiting a hearing for trial dated scheduled 20050330.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Elements of Discharge: 

Discharge Process:				
Date Notified:					20050321
Narrative Reason(s):				
Least Favorable Characterization:			
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20050323
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			 - NO STATEMENT FOUND IN RECORD
Board Date:					NOT APPLICABLE     
Finding of Administrative Board:			  
						
Recommendation of Commanding Officer (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050330)
Discharge directed by (date):			COMMANDER, NAVY REGION, MID-ATLANTIC (20050415)
Narrative reason directed:				
Characterization of directed:			 
Date Applicant Discharged:			20050429 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				1
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					1
	Health/Medical:					0
	Character Statements:				2
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				4

       Description of Other Documentation:  None.
            

Discussion

Propriety and Equity
There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.  The Board was satisfied that the evidence demonstrated the Applicant had committed serious misconduct against his step-daughter, that separation was warranted and that all procedural and substantive requirements were met.

Applicant’s Issues (as summarized by the NDRB):
1.  Characterization of service not warranted by overall service record.
2.  Discharged prior to State conviction.
3.  Post-service conduct mitigates characterization of service.

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1-3 for consideration.  

Issue 1 (Equity).  The period of service under review was only 5 months long.  Within that period of service the Applicant engaged in behavior resulting in being accused of aggravated sexual battery and custodial indecent liberties with a minor, his own stepdaughter.  There is credible evidence in the record of the Applicant’s misconduct, and the Applicant acknowledged confessing to Virginia state authorities.  The Board determined that the Applicant’s misconduct was serious, and that his discharge characterization was warranted.  Relief denied on this issue.

Issue 2 (Propriety).  Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, offense must be substantiated by a preponderance of evidence.  As noted above, the Applicant’s misconduct was substantiated by his own admission.  Separation processing is mandatory in cases of child sexual abuse.  Therefore, relief is denied on this issue.
  
Issue 3 (Equity).  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

Minority Opinion

None.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 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 134, Indecent assault and Indecent acts or liberties with a child.
				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