ex-PS3, USN

Current Discharge and Applicant’s Request

Application Received:  20080723
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20020930 - 20030323  		Active:  

Period of Service Under Review:
Date of Enlistment:  20030324	  Period of Enlistment:   Years   Extension	 Date of Discharge:  20071107
Length of Service:   Years     Months   14 Days	 Education Level:  	Age at Enlistment:  	AFQT:  66
Highest Rank/Rate: 	PS3	Evaluation Marks:  Performance:	 NFIR	Behavior:  NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):   , , , , , 

Periods of UA/CONF:       NJP:      SCM:      SPCM:      Retention Warnings:  
 
CC:  1
- 10232007:  Hampton Va. Police issued warrant for Applicant’s arrest for an alleged rape that took place on 20          
                     October 2007.      

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/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 Congress member:    

              Other Documentation (Describe):   
  		- Order of Expungement dated April 30, 2008

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.

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

Applicant’s Issues

1.  Unfair discharge.
Decision

Date:  20081030		Location:  Washington D.C.	Representation:  

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

Discussion

:  (Equity)  RELIEF NOT WARRANTED.  The Applicant implies he was treated unfairly by his command.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Board carefully considered the evidence provided by the Applicant, to include the order of expungement for the rape charge.  After a thorough discussion of the Applicant’s issue, the Board voted 3-2 the characterization shall remain “Under Other Than Honorable Conditions”.

For the information of the Applicant, a conviction or non-judicial adjudication is not required to separate a member from the Naval Service.  The Applicant was discharged based on a preponderance of evidence which allowed for the issue of a civilian arrest warrant for an alleged rape; this constituted the commission of a serious offense and was the basis for the discharge.  Under the regulations and laws for discharge the Applicant was processed for an administrative separation in strict compliance with the Naval Military Personnel Manual (reference A from Pertinent Regulations and Laws) based on this civilian warrant.  The Applicant was properly notified he was being processed for an administrative separation and the least favorable characterization of service was “Under Other Than Honorable Conditions”.  He waived his rights to an administrative separation board and to consult with an attorney.  

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An 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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

Dissenting Opinion
The Applicant’s rape charge, the basis for his discharge, was expunged.   After carefully considering this, the NCIS report of the incident, and the absence of any misconduct or poor performance in the Applicant’s official record, two Board Members voted to upgrade the Applicant’s discharge characterization to General (Under Honorable Conditions).  

Since the rape charge was expunged, the statements provided by the Applicant have greater credibility and support his position that his actions with the active duty Sailor involved were consensual.  The conduct of those who hosted the party where the incident occurred also contributed to the misconduct.  They were responsible for their conduct, and it is likely that they were willing participants who chose to ignore naval service core values and behave irresponsibly. 

Finally, there is evidence to support that the Applicant was the only participant held accountable by his command for his actions.  For the Applicant’s discharge to be equitable, the command should have held all participants accountable.  The Applicant was separated from the naval service less than three weeks after the incident.  While the action taken by the command was proper, it was not equitable.

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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