ex-SN, USN 
ND07-01033

Current Discharge and Applicant’s Request

Application Received:  20070724 	Characterization Received:  
Narrative Reason:  MISCONDUCT DUE TO CIVILIAN CONVICTION 	Authority:  MILPERSMAN 1910-144

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Civilian conviction was unrelated to military service
			2. Post-service conduct

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT DUE TO CIVILIAN CONVICTION.

Date:  20080110		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 (). The Applicant contends that the conduct for which he was convicted was unrelated to his performance of duties, which he asserts was honorable.  Per regulation, members may be separated based on civilian convictions when the offense would warrant a punitive discharge per the Manual for Courts-Martial for same or closely related offense; specific circumstances of offense warrant separation; or the civil sentence includes confinement for 6 or more months without regard to suspension probation or early release.  Processing for administrative separation is mandatory for deviant sexual behavior (lewd and lascivious acts; forcible heterosexual sodomy; indecent assault, acts, and/or exposure; or any child sexual abuse, possession of child pornography, or incestuous relationships).  An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s off-duty conduct was relevant to his service, which was marred by a civilian conviction for child molestation.  Such an offense is the same or closely related to a violation of the Uniform Code of Military Justice, Articles 134, and considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls far short of that required for an upgrade of his characterization of service.  

Issue 2 ().  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date.  However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

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 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19980831 - 19980923  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19980924		Years Contracted:  ; Extension:  	          Date of Discharge:  20010302
Length of Service:  02  Yrs  05  Mths  09  Dys         Lost Time: Days UA:   Days Confined: UNABLE TO DETERMINE
Education Level:  		Age at Enlistment:  		AFQT:  38		Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  3.5(2)	Behavior:  3.0(2)	 	OTA:  3.09 
Awards and Decorations (per DD 214):  AFEM, SSDR, MUC

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

20001218:	Civil conviction – Washington State, Kitsap County Superior Court, Child Molestation in Second Degree on 20000324 - 20000326.
	Sentence – 15 months jail, 12 months community custody and placement; no sexual content “900” number contact, provide phone records to CCO; no contact with children under age 18 without presence of adult knowledgeable of conviction and approved by CCO; no loitering or frequenting places where children congregate; abide by curfew set by CCO; submit to periodic polygraph or plethysonograph exams; no hitchhiking or picking up hitchhikers; $1981.00 fine plus costs. 

Discharge Process

Date Notified:					20010122
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20010122
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Commanding Officer Recommendation (date):	 (20010215)
Separation Authority (date):	COMCARGRU THREE (20010220)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20010302

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)  American Legion certificate; Center for Child and Family Advocacy letter

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33 effective 9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), 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.

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, Articles 134, Assault – indecent; and 134, Indecent acts or liberties with a child.

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