ex-MM2, USN

Current Discharge and Applicant’s Request

Application Received:  20071010 
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19850815 - 19850827  		Active:   19850828 – 20010827 HON   
Period of Service Under Review:
Date of Enlistment: 20010828			Period of enlistment:   Years  		Date of Discharge:  20040506
Length of Service:   Yrs  Mths 08 Dys	Education Level:  	Age at Enlistment:  	AFQT:  27
Highest Rank/Rate:  MM2	Evaluation marks:  Performance: 3.4 (5)	Behavior: 2.4 (5)		OTA:  3.22 (5)
Awards and Decorations (per DD 214): Defense Meritorious Service Medal (2), Meritorious Service Medal, Joint Service Commendation Medal, Joint Meritorious Unit Award (2), , NAVY”E”,  (4),  (2), , , ,  (4), UNSM, , and ESWS

CC:	20031105:  Indecent solicitation.  Sentence – 24 months probation.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

	  “Continuous Honorable service 88 APR 22 - 01 AUG 27”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

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

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Unblemished service record warrants honorable characterization of service.

Decision

Date:  20080207		Location:  Washington D.C	 Representation:  

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

Discussion

Issue 1 ():  The Applicant contends that his service record is unblemished and therefore warrants an honorable characterization of service.  Despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The characterization of service is a description of the total service provided during the member’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A under other than honorable conditions discharge 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 civil conviction for indecent solicitation of a child.  The Applicant was properly advised of his intended administrative separation due to homosexual conduct, misconduct by the commission of a serious offense and civil conviction.  During this processing the Applicant elected to be represented by an attorney and to have his case heard before an administrative board.  This board voted unanimously that the evidence supported the charges, that separation was warranted and that the Applicant should be separated with a characterization of service of under other than honorable conditions). After ensuring proper processing in accordance with MILPERSMAN 1910-144 the discharge authority directed the Applicant’s discharge as under other than honorable conditions.  The Applicant’s conduct reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service. 

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, 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.

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