ex- ET3, USN

Current Discharge and Applicant’s Request

Application Received:  20020212
Characterization of Service Received:  
Narrative Reason for Discharge:   (SERIOUS OFFENSE)
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990925 - 20000103  		Active:    - HON 20000104 - 20051110

Period of Service Under Review:
Date of Enlistment: 20051110	Period of  Enlistment:   Years   Extension	Date of Discharge:  20060613
Length of Service:  00  Yrs  07  Mths  03  Dys	Education Level:  	Age at Enlistment:  	AFQT:  70
Highest Rank/Rate:  MA2	Evaluation Marks:  Performance: 3.0(1)	Behavior: 5.0(1)	OTA:  4.43
Awards and Decorations (per DD 214):  Rifle  Pistol  ESWSI EAWSI        

Periods of UA/CONF:  

NJPs:	
	20060516:  Article ,
                                 Article 134 (Adultery).
                                 Awarded -  .

Types of Documents Submitted/reviewed

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. Discharge improper based on in service performance for 6.5 years and the incident is not criminal in nature.

Decision

Date:  20080619		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

 ():  .  The Applicant contends his discharge was improper and should be upgraded to honorable because he had previously served honorably for 6.5 years and the incident was not criminal in nature.  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.  The Applicant’s service record is marred by an award of nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery); thus substantiating the misconduct (commission of a serious offense) for which he was separated.  

Pursuant to MILPERSMAN 1910-142, separation processing of a service member for misconduct due to the commission of a serious offense may be initiated when the offense warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial for the same or closely related offense.  The Applicant’s summary of service clearly indicates he engaged in conduct that could warrant a punitive discharge if adjudged at a special or general court martial. Instead, the command opted for nonjudicial punishment and administratively discharged the Applicant in accordance with all applicable established procedures.  His previous service performance of 6.5 years was not sufficient to mitigate the misconduct which resulted in his separation.  However, in the Board’s view the Applicant’s previous service may have been the reason the command did not pursue a punitive discharge through a special or general court-martial.  

The Applicant also contends he was separated from his spouse at the time he was charged with adultery and therefore it was not an illegal act.  Pursuant to the UCMJ, Article 134 (2), the elements constituting the crime of adultery are as follows: 1) The accused wrongfully had sexual intercourse with a certain person; 2) While the accused or the other person was married to someone else; and, 3) Under the circumstances, the conduct of the accused was to the prejudice of good order and discipline of the armed forces or was discrediting to the service.  The Applicant’s argument he was separated from his spouse at the time he was charged with adultery is not a legitimate defense.  Pursuant to Article 134, (c)(3), a marriage is deemed to exist until dissolved in accordance with the laws of a competent jurisdiction (as evidenced by a divorce decree).  There was no evidence in the Applicant’s service record, nor was any provided, documenting the divorce had been finalized by a divorce decree at the time he was charged with adultery.   

Additionally, the Applicant argues the Federal government does not have the right to interfere with his personal affairs.  Pursuant to Rules for Courts-Martial, 201, the military has authority or jurisdiction to punish any competent, active duty person, subject to the UCMJ, for offenses that violate both the code and local criminal law, foreign or domestic.  All active duty service members are subject to the UMCJ 24 hours a day.  When a service member engages in misconduct during off duty hours, they may be punished, if that conduct violated the UCMJ and/or was discrediting to the service.  The Board determined an upgrade would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, and Discharge Process, the Board found   

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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 92, Violation of lawful order or regulation.

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 other medical related reasons.  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