ex-ATAN, USN
ND07-01175

Current Discharge and Applicant’s Request

Application Received:  20070828 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 3630605

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Deficiency at Crime Lab affected case, DNA evidence was inconclusive
			2. Denied request for court-martial
			3. Denied opportunity to face accusers
			4. Isolated incident in otherwise good service

Decision

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

Date:  20080124		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The Applicant’s DD 214 indicates that the Applicant was discharged for misconduct – commission of a serious offense with a characterization of service as general (under honorable conditions).  The Applicant’s service record does not contain copies of the administrative action in regard to his discharge, nor does the Applicant refer to the offense or offenses which led to his discharge.  Based on the information in the record (including the Separation Code of GKL) and the Applicant’s submission, the Board concluded that the Applicant had been suspected or accused of some offense under the Uniform Code of Military Justice (UCMJ) of a sexual nature for which a punitive discharge was authorized and that some or all of the evidence identifying the Applicant as a suspect was derived from the results of DNA testing at the U.S. Army Criminal Investigation Laboratory (USACIL).  The Applicant asserts to the NDRB that a subsequent finding that a DNA examiner at USACIL was suspended due to misconduct while performing his duties demonstrates that the evidence against him was not credible.  The NDRB noted that the Applicant’s claim that the DNA evidence was “deemed inconclusive” could mean either that either the test result itself was inconclusive, or that the test result linking him to the offense should now be considered inconclusive because of the deficiency.  In the absence of specific information in the record regarding the test results, the NDRB considered both possible meanings in its review.  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.  While the NDRB accepted at face value the Applicant’s evidence of a deficiency at USACIL, it concluded that there was insufficient evidence to further conclude that the deficiency affected, or was even related to, the Applicant’s case.  

Issue 2 ().  In the absence of specific information in the record, the Board concluded from the Applicant’s claim that he had been offered nonjudicial punishment (NJP) as a forum in which to resolve the allegation(s) against him and that he had exercised his right to demand trial by court-martial rather than accept NJP.  Exercising this right ensures that a member is not punished  for violations of the Uniform Code of Military Justice without the opportunity to exercise the full panoply of due process rights, including a finding of guilt beyond reasonable doubt; however, it has no necessary bearing on whether or not administrative separation for the reason of commission of a serious offense is warranted under applicable regulations.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction.  It must, however, be substantiated by a preponderance of evidence.  In the Applicant’s case, the available record leads to the conclusion that an Administrative Discharge Board determined by a preponderance of evidence that he committed misconduct.  

Issue 3 ().  As noted below, the NDRB presumes regularity unless the presumption is rebutted.  The Applicant’s record references an Administrative Discharge Board, which the NDRB panel presumed acted in accordance with applicable regulations and standards in assessing the evidence and determining to recommend an appropriate disposition consistent with the evidence.  The NDRB could not determine whether or not the Applicant’s statement that he “never had the opportunity to face his accusers” meant that a witness (or witnesses) against him did not testify in person at his discharge board for some improper reason, or that he was improperly denied the opportunity to cross-exam such witnesses that did testify, or that he was precluded in some improper manner from fully exercising his ability to challenge the evidence against him.  Regardless of the possible meanings, the NDRB concluded that the Applicant’s assertion was not sufficient to overcome the presumption of regularity attaching to the discharge board proceedings.

Issue 4 ().  The Applicant contends that his discharge was inequitable because it was based on one isolated incident in 50 months of outstanding service.  The NDRB first noted that the Applicant served honorably during his first enlistment and that the period of service under review consisted of only 13 months.  In addition, the NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  In light of the NDRB’s determination that, as noted above, the presumption the Applicant’s discharge was proper had not been rebutted, the NDRB further concluded that a characterization of service as general (under honorable conditions) for a period of 13 months service was consistent with standards of naval discipline.

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)	19930907 - 19931101  		Active:   	19931102 - 19961101  HON
Period of Service Under Review:
Date of Enlistment: 19961102		Years Contracted:  ; Extension:  		Date of Discharge:  19971215
Length of Service:  01  Yrs  01  Mths  14  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  71	Highest Rank/Rate:  AT3
Evaluation marks (# of occasions):	Performance:  4.0(4)	Behavior:  1.8(4)		 OTA:  3.15 
Awards and Decorations (per DD 214):  NDSM, MUC, GCM

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

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:			 
	
Administrative Board Date	19970916 (per Evaluation Report and Counseling Record of 19971215)
              Findings, by preponderance of the evidence:	
              Recommendation on Separation: 	
              Recommendation on Characterization:	

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19971215

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)  Letter from Office of the Judge Advocate General

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 29 March 2000, 
Article 1910-142, SEPARATION OF ENLISTED PERSONNEL 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.

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