ex-YN2, USN

Current Discharge and Applicant’s Request

Application Received: 20100331
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)	19880308 - 19880310  	Active:	 19880311 - 19931209 HON
		 19931210 - 19970929 HON

Period of Service Under Review:
Date of Current Enlistment:  19970930	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20030829	Highest Rank/Rate:  YN2
Length of Service:   Year(s)     Month(s)   30 Day(s)
Education Level:  	AFQT:  33
Evaluation Marks:	Performance:  4.0 (7)	Behavior:  3.2 (7)	OTA:  3.71

Awards and Decorations (per DD 214):	JSCM JSAM NAM (4) JMUA    (4)   (2) ESWS

Period of UA/CONF:  In hands of Civilian Authorities, discharged in absentia

NJP:  	SCM:  	SPCM:  

CC:  

- 20030303:	Offenses:  Indictment #1: Indecent liberties with a minor (Custodial).  Indictment #5: Aggravated sexual battery (a lesser included felony).
	Sentence:  Incarceration for 5 year for Indictment #1 (5 years suspended); Incarceration for 10 years for indictment #5 (eight years suspended), 2 years of incarceration to be served. 

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880311 UNTIL 970929”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 120.  

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to be eligible for reenlistment.  

2.	Decisional issues: The Applicant contends that his previous 15 years of honorable service were not considered by the administrative discharge board and do warrant consideration for upgrading the characterization of his service at discharge.  Applicant contends that his discharge board was improper and the results were inequitable because his civilian attorney was not notified of the board and was not present.

Decision

Date:  20110505	          	Location:  Washington D.C.	Representation:  

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

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 NDRB 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 identified two decisional issues for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service reflects entry into the military without waiver at age 19.  He completed two honorable periods of enlistment before reenlisting for his current contract of 6 years at age 28.  The Applicant’s period of enlistment under review does not include any NAVPERS 1070/613 retention-counseling warnings or any nonjudicial or judicial punishments for violations of the Uniform Code of Military Justice.  However, the Applicant was convicted by a Virginia Superior Court for Indecent liberties with a Child (in a custodial relationship) and for Aggravated Sexual Battery of a child.        

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation with a basis of Misconduct (due to Civil Conviction) and Misconduct (due to the Commission of a Serious Offense) in accordance with the Naval Military Personnel Manual (MILPERSMAN) on 19 May 2003.  The Applicant elected to consult with qualified legal counsel and requested an Administrative Separation Board (ASB).  On 08 July 2003, a properly constituted ASB was convened by the Applicant’s command.  The Applicant was represented by his military counsel.  The Board determined by a vote of 3-0 that based on a preponderance of the evidence, the Applicant did commit the misconduct as specified.  Additionally, by a vote of 3-0, the board recommended separation and recommended that the Applicant’s current period of service be characterized as Under Other Than Honorable Conditions.  

On 28 July 2003, the Command submitted its recommendation for discharge to the Separation Authority, recommending separation based on the commission of a serious offense.  On 07 August 2003, the Separation Authority approved the recommendation for separation, designating that the basis for separation be MISCONDUCT (Serious Offense) - having determined that the evidence of record supported both bases for discharge - and that the characterization of service, as recommended - Under Other Than Honorable Conditions - was warranted.  The Applicant was discharged, in absentia, on 29 August 2003 having been taken into custody of civilian authorities due to his conviction by the Superior Court of Virginia.            He was discharged with an Under Other Than Honorable Conditions characterization of his service and was further advised that he was not recommended for future re-enlistment and was assigned a reentry code of RE-4 on his DD Form 214.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) so that he may be eligible to continue to serve his country.  There is no requirement, or law, that grants re-characterization solely on the issue of improving reenlistment opportunities; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces and is not authorized to change a reentry code.  The Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form 149 to address reentry code re-characterization.  When requesting a change, the Applicant should provide as much documentation as possible regarding the reason a change is warranted.  The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

(Decisional Issues) ()  .  The Applicant contends that his previous 15 years of honorable service were not considered by the ASB and do warrant consideration for upgrading the characterization of his service at discharge.  Applicant contends that his discharge board was improper and the results were inequitable, because his civilian attorney was not notified of the board and was not present.  

In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the purported offenses warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  The Applicant’s civilian convictions would have been charged as a violation of Article 120 of the UCMJ, which warrants a punitive discharge and confinement for up to 20 years if adjudicated at trial by court-martial.  Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements as established by the MILPERSMAN for separation based on Misconduct (Commission of a Serious Offense) as the primary basis for discharge.  Likewise, the civilian conviction by the Commonwealth of Virginia warranted mandatory processing for discharge pursuant to Article 1910-144 of the MILPERSMAN - Misconduct (Civilian Conviction).  The Applicant elected to consult with qualified legal counsel and to present his case for retention to an ASB.  The Command complied with the Applicant’s election of rights and properly notified the Applicant and his appointed military counsel of the date, time, and location of the hearing.  The Applicant was represented by his appointed military counsel at the separation board.  Neither prior to, during, or after the conduct of the hearing did the Applicant or his military defense counsel raise issue regarding the notification to civilian retained counsel.  The Applicant did not request a delay or change in schedule to allow for scheduling the attendance of the civilian counsel.  As such, the NDRB determined this issue to be without merit and that it did not materially prejudice the Applicant during the conduct of the board.

The Applicant states his character is demonstrated by his 15 years of honorable and faithful service.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service when involuntarily discharged is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations may be given to the member’s length of service, grade, aptitude, and physical and mental condition.  A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

Upon review of the Applicant’s record of service during the current period of enlistment, the NDRB determined the Applicant did engage in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB found the characterization of the Applicant's discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the narrative reason for discharge or inequity in the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade would not be appropriate.  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 NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  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 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