ex-BM2, USN
ND07-00333

Current Discharge and Applicant’s Request

Application Received:  20070125            Characterization Received:  
Narrative Reason:  MISCONDUCT 					          Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit misconduct/wrongfully convicted
			2. Denied JAG for civil court appearance 
			3. Wrongfully induced to re-enlist pending court appearance
			4. Discharge not warranted by overall service record 
			5. Post-service conduct warrants upgrade

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date: 20071011     Location:  Washington D.C.   Representative: Disabled American Veterans

Discussion

Issue 1 (). The Board advises the Applicant that commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  There is credible evidence in the record that the Applicant committed the misconduct for which he was discharged, including evidence that he admitted to having committed the misconduct.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification and approved by the Separation Authority.  

Issue 2 ().  Item 12 of Applicant’s DD Form 293, Attachment “A”.  The record reflects that the Applicant was represented by counsel at his civil conviction.  The Applicant was not entitled to representation by a judge advocate in his civil trial, and could not, therefore, have been wrongfully denied such assistance. 

Issue 3 (). Item 14 of Applicant’s DD Form 293, Attachment “A”.  The Board construed this issue to mean that, had the Applicant not extended his enlistment, he would have reached his EAS and been discharged for that reason, with a characterization based on his service record, rather than for misconduct and an other than honorable characterization of service.  The Applicant’s EAS, based on his re-enlistment of 6 years on 19940801, was 20000731.  The evidence of record indicates that the Applicant, on 20000809, voluntarily extended his enlistment for 11 months to accept orders, with a new EAS of 20011031, thereby extending his enlistment for a total of 15 months.   This evidence implies a previous extension of 4 months, although there is no documentation of such in the Applicant’s record.  In addition, there is evidence in the record of a second voluntary extension of 2 months on 20001115 with a new EAS of 20010131, indicating an aggregate extension of 6 months.  Although confusing, in either event the evidence implies that the Applicant extended his enlistment beyond his original EAS for a period extending through his discharge date of 20010111.  Further, the Board found no evidence to indicate that the Applicant was coerced or defrauded into extending his enlistment.  Whatever administrative errors exist in the Applicant’s record, the Board determined that there was no prejudice to the Applicant as a result.

Issue 4 (). In this issue, the Board combined items 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 15 of Applicant’s DD Form 293, Attachment “A”.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by admission to, and a civil conviction for, forcible oral sodomy upon a 6 year old girl.  Such conduct constitutes a significant departure from the standards of behavior expected of servicemembers.  The NDRB advises the Applicant that such conduct constitutes a serious offense under the Uniform Code of Military Justice, for which a punitive discharge and confinement for life is authorized as punishment upon conviction at general court-martial.  Characterization of the Applicant’s service, for the period of service under review, as under other than honorable conditions in light of this misconduct is entirely appropriate.

Issue 5 (). Item 1 of Applicant’s DD Form 293, Attachment “A”, and supporting documents.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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.  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.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

  “MILPERSMAN 1910-142”
  “CONTINUOUS HONORABLE SERVICE FROM 19900808 - 19940731”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900411 - 19900807  		Active:   	19900808 - 19940731  
Period of Service Under Review:
Date of Enlistment: 19940801	Years Contracted:  ; Extension:  	Date of Discharge:  20010111
Length of Service:  06  Yrs  05  Mths  11  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  Unreadable	Highest Rank/Rate:  BM2
Evaluation marks (# of occasions):	Performance:  4.0(3)	Behavior:  4.0(3)	 	OTA:  4.00    (4.0 scale)
				Performance:  4.3(7)	Behavior:  4.0(7)		OTA:  3.80    (5.0 scale)
Awards and Decorations (per DD 214):  EXPERT RIFLEMAN MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, HUMANITARIAN SERVICE MEDAL (2), NAVY EXPEDITIONARY MEDAL, ARMED FORCES SERVICE MEDAL (2), MERITORIOUS UNIT COMMENDATION, LETTERS OF COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, NAVY UNIT COMMENDATION (2), SEA SERVICE DEPLOYMENT RIBBON (2), KUWAIT LIBERATION MEDAL, NAVY "E" RIBBON, KOSOVO CAMPAIGN RIBBON, SECOND GOOD CONDUCT MEDAL 07AUG97, NAVY ACHIEVEMENT MEDAL

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

20000913:	Case Review Committee report:  Applicant admitted to one incident of forcible sodomy upon then 6-year old stepdaughter.  CPS:  Substantiated for level 1 child sexual abuse.  Applicant ordered into counseling.

20001122:	Civil Conviction:  Virginia Beach Circuit Court for forcible sodomy from 19950421 - 19970420.
	Sentencing scheduled for 20010117.

Discharge Process

Date Notified:					20001208
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20001208
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20001214)
Separation Authority (date):	COMFAIRMED NAPLES IT (20001215)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20010111

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)  Letters to Applicant from prison chaplain

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, dated 7 November 2000, effective 30 August 2000 until 24 January 2001, 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 125, Sodomy.

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