ex-OS1, USN
ND07-00089

Current Discharge and Applicant’s Request

Application Received:  20061030 	Characterization Received:  	
Narrative Reason:  MISCONDUCT (CIVIL CONVICTION) Authority:  MILPERSMAN 1910-144

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Re-enlistment.
			2.  Chain of Command mislead him into pleading guilty.
			3.  Administrative Board’s recommendation for retention.
			4.  Post Service

Decision

By a vote of  the Characterization shall   .	
By a vote of  the Narrative Reason shall  MISCONDUCT (CIVIL CONVICTION).

Date:  20070906		Location:  Washington D.C.  The Board found that 

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 ():    Regulations permit relief on the grounds of propriety and/or equity.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A General (under honorable conditions) characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a civilian conviction which forms the basis for his administrative discharge and characterization of service.  According to the Naval Military Personnel Manual, (NAVPERS 15560C), Article 1910-144, processing is mandatory for any civil conviction resulting from child sexual abuse.  The Applicant’s conduct, which forms the primary basis for determining his characterization of service, reflects the Applicant’s apparent disregard for Navy Core Values and falls short of that required for an upgrade to his assigned characterization of service. 

Issue 3 (Propriety): MILPERSMAN, Article 1910-710 directs that Commanders must forward all cases in which processing is mandatory to COMNAVPERSCOM when an administrative boards decision finds evidence which supports a reason for separation even if retention is recommended.  In this case because the Commanding Officer agreed with the administrative board’s decision to request retention the case was forwarded to the Assistant Secretary of the Navy for proper disposition.

Issue 4 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19901113 - 19910702  	Active:   	19910703 - 19950618  
								USN	19950619 - 20010404  HON
Period of Service Under Review:
Date of Enlistment: 20010405	Years Contracted:   Extension:  NONE  	Date of Discharge:  20050902
Length of Service:  04 Yrs 04 Mths 28 Dys	Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  55	Highest Rank/Rate:  OS1
Evaluation marks (# of occasions):	Performance:  3.6  Behavior:  3.3	 OTA:  3.69(5) 
Awards and Decorations (per DD 214):  NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2), NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION, NAVY "E" RIBBON, GOOD CONDUCT MEDAL (4), NATIONAL DEFENSE SERVICE MEDAL (2), GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), ENLISTED SURFACE WARFARE SPECIALIST

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20010405:	Applicant reenlisted aboard USS ARLEIGH BURKE (DDG 51) for six years.

200105XX:	Applicant returns from deployment.

20011110:	Applicant arrested and charged with sexual battery and indecent liberties.  

20020522:	Civil Conviction:  Circuit Court of the City of Norfolk for violation of sexual assault (pled guilty).

20030107:	Applicant deployed aboard USS ARLEIGH BURKE (DDG 51).

20030611:	Applicant returns from deployment.

20040116:	Article 32 hearing found no probable cause for supporting the charges and recommended dismissal of charges without prejudice.  Sited Virginia State Police Investigation which was dropped and stalled NCIS investigation. 

20040116:	Applicant promoted to OS1.

20040312:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

20040312:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

20040507:	Administrative Board voted 3-0 that a commission of a serious offense did not occur, 3-0 to uphold charges of civilian conviction (sexual assault), and voted 3-0 for retention.  Testimony from Applicant’s Chief who was at the Applicant’s civil conviction made the call back to the USS ARLEIGH BURKE (DDG 51) and also relayed the message to the judge and the Applicant that the command would take no further action with regard to this incident if the Applicant pled guilty to the misdemeanor charges.  Also, discussed that although the Applicant agreed to accept the plea he refused to allocate and the Applicant’s Summary Court Martial case which was dropped due to lack of evidence.

20040723:	Retention warning for failing Physical Readiness Assessment by exceeding height/weight and body fat limits and failure to meet Physical Readiness Test (PRT) standards.

20050213:	Commanding Officer, USS ARLEIGH BURKE (DDG 51) forwarded to Commander, Navy Personnel the Applicant’s administrative discharge package recommending retention. 

20050525:	Commander, Navy Personnel Command forwarded discharge package recommending the Applicant’s discharge based on his demonstrated lack of potential for future productive service and his apparent disregard for Navy Core Values to Assistant Secretary of the Navy.

20050527:	Assistant Secretary of the Navy approves the Applicant’s discharge recommendation as General (under honorable condition) due to misconduct – civilian conviction.

20050531:	Commander, Navy Personnel Command directed Applicant’s discharge with a service characterization of general (under honorable conditions) by reason of misconduct (civil conviction).

20050705:	Commanding Officer, USS ARLEIGH BURKE (DDG 51), to the Assistant Secretary of the Navy via Commander, Navy Personnel Command strongly recommended the retention of the Applicant.  Wherein, he sited three separate investigations which all unanimously found him not guilty of the charges and summarized the timeline and facts of case.  He also sites and administrative oversight resulting in the commands failure to forward results of administrative board to Commander, Navy Personnel Command.  

20050808:	Applicant forwards request for retention to Assistant Secretary of the Navy, including letter from Commander, Destroyer Squadron Two, Commanding Officer, USS ARLEIGH BURKE (DDG 51) and six letters from his chain of command.

20050810:	Commander, Navy Personnel Command forwarded discharge package recommending approval to Assistant Secretary of the Navy.

20050822:	Assistant Secretary of the Navy approves the Applicant’s discharge recommendation as general (under honorable condition) due to misconduct – civilian conviction. 

20050823:	Commander, Navy Personnel Command directed Commanding Officer, USS ARLEIGH BURKE (DDG 51) to discharge the Applicant per Assistant Secretary of the Navy’s ruling.  

20050902:	Performance Report:  Applicant marked as 3.43 / EP.  

20050902:	Applicant discharged.

20051116:	Commander, Naval Surface Force Atlantic Fleet to Applicant.  “...The Board was convened based on mandatory processing guidelines for Sailors in your circumstances.  Following the board’s conclusion, your Commanding Officer was required to report and comment on the board’s findings to Navy Personnel Command...your Commanding Officer wrote an extremely favorable recommendation on your behalf...he strongly recommended that you be retained in the naval service.”

Discharge Process
Date Notified:					20040312
Reason for Discharge:	 			 - 
		     	 			 - 
		 Least Favorable Characterization:	

Date Applicant Responded to Notification:		20040312
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20050808)
	Administrative Board			
	
Administrative Board Date:	20040507
              Findings, by preponderance of the evidence:	BY   -  .
	BY   -  .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY  

Commanding Officer Recommendation (date):	RETENTION (20050213)
Commander, Navy Personnel Command (date)	GENERAL (UNDER HONORABLE CONDITIONS) (20050810)
Asst Sec of the Navy (M&RA) (date)	APPROVED (20050822)
Separation Authority (date):	COMNAVPERSCOM (20050823)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050902

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 
1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  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.  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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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.  

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 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.  

Board Membership:  The names and votes of the members of the 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