ex-MMC(SW/SS), USN

Current Discharge and Applicant’s Request
Application Received: 20091208
Characterization of Service Received:  
Narrative Reason for Discharge:  SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge:  MILPERSMAN 1830-040

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	19850321 - 19851008  	Active:	 19851009-19890825 (HON)
				19890826-19921201 (HON)
				19921202-19980215 (HON)

Period of Service Under Review:
Date of Current Enlistment:  19980216	Age at Enlistment:  47
Period of Enlistment:   Years   Extension
Date of Discharge:  20080229	Highest Rank/Rate:  MMC
Length of Service:   Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  64
Evaluation Marks:	Performance:  3.75 (4)	Behavior:  3.5 (4)	OTA:  3.72

Awards and Decorations (per DD 214):  x8    x8  x4  x2 NEM x2      x7  x7 

Periods of UA/CONF:   Appellate leave 20030409-20080229 (4 yrs, 10 months, 20 days)

NJP:       SCM:       CC:       Retention Warning Counseling:  

SPCM:  
- 20021130:	Article  (Failure to obey an order or regulation: violation of Navy sexual harassment policy)
	Article  (Indecent assault, 2 specifications)
	Sentence:   Guilty findings for Article 92 affirmed on appeal.  Guilty findings for both specs of Article 134 were set aside on appeal with a rehearing authorized.  A rehearing was found to be impracticable and the convening authority approved a sentence of no punishment as authorized by the court of appeal.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law
A.  MILPERSMAN 1830-040, Transfer to Fleet Reserve and Release from Active Duty.

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.	The Applicant desires his reenlistment code to be changed to RE-2 (not recommended for reenlistment due to retirement.)
2.	The Applicant contends since the Navy-Marine Corps Court of Criminal Appeals set aside his conviction and sentence for one of his charges at special court-martial, and a sentence of no punishment was approved, he should have an Honorable characterization of service.  

Decision

Date:  20110120		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SUFFICIENT SERVICE FOR RETIREMENT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included   for  of the UCMJ: Article 92 (Failure to obey an order or regulation, 1 specification) and Article 134 (General: indecent assault, 2 specifications).  The Applicant was found guilty and sentenced to reduction to E-1 and a Bad Conduct Discharge.  Following appellate review, the Navy-Marine Corps Court of Criminal Appeals set aside his conviction and sentence regarding charge II (2 specifications of Article 134: indecent assault).  The convening authority chose to approve a sentence of no punishment, retire the Applicant, and transfer him to the fleet reserve with a General (Under Honorable Conditions) characterization of service.

The Applicant provided documentation that included several documents pertaining to his special court-martial: a charge sheet, special court-martial convening order, the Navy Marine Corps Court of Criminal Appeals opinion, and the Applicant’s appellate leave request.

:  (Nondecisional) The Applicant desires his reenlistment code to be changed to RE-2 (not recommended for reenlistment due to retirement.)  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 can make changes to reenlistment codes.  

:  (Decisional) ()  .  The Applicant contends that since the Navy-Marine Corps Court of Criminal Appeals set aside the conviction and sentence for one of his charges at special court-martial, and a sentence of no punishment was approved, he should receive an Honorable characterization of service.  The Applicant further contends any characterization other than an Honorable characterization constitutes a punishment.  The NDRB disagrees with the Applicant’s contention.  A General (Under Honorable Conditions) characterization of service is not a punitive discharge.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member's service has been honest and faithful but significant negative aspects of the member's conduct or performance of duty outweighed the positive aspects of the member's service record.  MILPERSMAN 1910-166, Administrative Action for Fleet Reserve/Retired Reserve Eligible Personnel, states, “When approving requests to transfer to the Fleet Reserve or to the Retired Reserve, SECNAV will assign an appropriate characterization of service per the guidelines set forth in MILPERSMAN 1910-300 series.”  MILPERSMAN 1910-302, General Consideration on Characterization of Service, states characterization shall be based on the following: “a. The quality of the member’s service…The quality of service shall be determined according to standards of acceptable personal conduct and performance of duty.  b. The reason for separation, the specific circumstances that form the basis for the separation, as well as the military record, shall be considered on the issue of characterization.  Generally, characterization will be based upon the member’s total performance of duty and conduct during the current enlistment; however, there are circumstances where the conduct or performance of duty reflected by a single incident may form the bases of characterization.  A single adverse incident such as discreditable involvement with civil/military authorities that is prejudicial to good order and 

discipline may be used to characterize a Sailor’s overall service.  The incident does not have to result in punishment (nonjudicial punishment, court-martial, civil conviction).”  The record showed the Applicant’s conviction for charge I, violation of Article 92 (Failure to obey an order or regulation: Navy Sexual Harassment Policy), was affirmed on appeal.  Therefore, the Applicant had significant misconduct (court-martial conviction) on his record that could be considered prejudicial to good order and discipline when the Secretary of the Navy determined his characterization of service at retirement.  The NDRB found the convening authority was lenient in not ordering a rehearing for charge II or sentencing as authorized and opting to approve a sentence of no punishment and retirement with a General (Under Honorable Conditions) characterization of service.  The NDRB determined an upgrade would be inappropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain SUFFICIENT SERVICE FOR RETIREMENT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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