ex-AGAN, USN

Current Discharge and Applicant’s Request

Application Received: 20120208
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)	19800926 - 19801104  	Active:	USAF 19770609-19770915
	USAFR 19770209-19770608		USN   19801105-19870302
	USAFR 19770916-19800925		USN   19870303-19910530
				USN   19910531-19950425

Period of Service Under Review:
Date of Current Enlistment:  19950426	Age at Enlistment:  38
Period of Enlistment:  6 Years   Extension
Date of Discharge:  20000831	Highest Rank/Rate:  AG1 
Length of Service:  5 Years   4  Months   6 Days
Education Level:  12	AFQT:  75
Evaluation Marks:	Performance:  4.20 (5)	Behavior:  4.36 (5)	OTA:  3.76

Awards and Decorations (per DD 214):	 (4)  (4)  (3)     (4)  JSAM NMCAM

Periods of CONF:  19990719 - 19991202

NJP:  	SCM:  		CC:  	Retention Warning Counseling:  

GCM:  

- 19990703:	Article 125 (Sodomy)
	Article 134 (Indecent assault) 
	Sentence:   CONF 6 mo

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 19801105 UNTIL 19950425”
  “1999 JUL 19 to 1999 DEC 02”

	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), Change 30, effective 30 August 2000 until 24 January 2001, 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, Articles 125 and 134.

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

Applicant’s Issues

1.	The Applicant requests a change to his RE code and separation code. 
2.	The Applicant contends his General Court-Martial was unfair in its proceedings.
3.	The Applicant contends his administrative separation was a double punishment since his General Court-Martial did not result in a Bad Conduct or Dishonorable Discharge.
4.	The Applicant contends his misconduct was an isolated event in an otherwise honorable period of service.
5.	The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade.

Decision

Date:  20130110		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 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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  General Court-Martial for violations of the UCMJ: Article 125 (Sodomy) and Article 134 (Indecent assault).  The Applicant’s General Court-Martial conviction did not result in a punitive discharge (i.e., Bad Conduct or Dishonorable).  However, due to the seriousness of the offenses committed by the Applicant,  command administratively processed  for separation.  Per regulations, this is permitted but final approval for discharge for the same offenses for which the General Court-Martial was convened is with the Secretary of the Navy (delegated to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN M&RA)).  The record reflects the Applicant submitted an appeal for Congressional assistance on 16 March 2000.  Commander, Naval Personnel Command directed the Transient Personnel Unit Naval Base San Diego, CA to investigate on 04 April 2000, which resulted in no change to the Applicant’s discharge.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  On 12 May 2000, the administrative separation board voted 3-0 that the Applicant had committed misconduct, 3-0 to recommend separation (suspended for 12 months) due to Misconduct (Commission of a Serious Offense) and Homosexual Conduct, and 3-0 to recommend the characterization of service be Under Other Than Honorable Conditions.  The Applicant’s Commanding Officer concurred with the results of the administrative separation board except for the suspension.  On 15 August 2000, the ASN (M&RA) approved the recommendations to discharge the Applicant Under Other Than Honorable Conditions for Misconduct (Commission of a Serious Offense) with no suspension.  The record also reflects an appeal from the Applicant to the Board for Correction of Naval Records (BCNR), which convened their own panel to review the Applicant’s contentions.  On 3 February 2011, BCNR found no basis for substantiating an upgrade.
 
:  (Nondecisional) The Applicant requests a change to his RE code and separation 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 can make changes to reenlistment codes.  Additionally, the Applicant’s separation code is appropriate and in accordance with Naval Military Personnel Manual Article 1910-142.

:  (Decisional) ()  .  The Applicant contends his General Court-Martial was unfair in its proceedings.  The Applicant contends he pled guilty for fear of incurring an excessive punishment and also felt the lack of a witness (victim) in his case made it unfair to prosecute him.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, matters of propriety related to the conduct of a punitive court-martial (e.g., General Court-Martial) 

are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces.  The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial.  In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision.  Furthermore, the Applicant pled guilty to both the Article 125 and 134 charges.  If the Applicant felt he was not guilty, it was his responsibility to contend the charges at that time.  The NDRB determined this issue does not warrant an upgrade.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his administrative separation was a double punishment since his General Court-Martial did not result in a Bad Conduct or Dishonorable Discharge.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as nonjudicial punishment or court-martial.  Per regulations, administrative separation processing is permitted based upon the commission of offenses that were adjudicated at a Special or General Court-Martial that did not result in a punitive discharge.  However, final separation authority when this occurs rests with the Secretary of the Navy, who has delegated this authority to the Assistant Secretary of the Navy for Manpower and Reserve Affairs.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous.  Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing and determined that he was afforded full rights, was not doubly punished, and received an equitable discharge.  Relief denied. 

Issue 4:  (Decisional) ()  .  The Applicant contends his misconduct was an isolated event in an otherwise honorable period of service.  The Applicant received Honorable discharges for his three Navy enlistments from November 1980 to April 1995.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  In his fourth enlistment, the Applicant was found guilty at a General Court-Martial of violating UCMJ Articles 125 and 134.  Certain serious offenses warrant separation from the service to maintain proper order and discipline.  Even though he did not receive a punitive discharge at court-martial, his command determined he was no longer fit for Naval service and so initiated separation proceedings.  Violation of Articles 125 and 134 are offenses that warrant processing for administrative separation regardless of grade, decorations, time in service, and how close one is to reaching 20 years of service.  Upon being notified of separation proceedings, the Applicant elected to appear before an administrative separation board, which determined he did commit serious misconduct and recommended a suspended separation Under Other Than Honorable Conditions.  Ultimately, the Assistant Secretary of the Navy for Manpower & Reserve Affairs determined the Applicant did commit misconduct and ordered that he be discharged (without suspension) Under Other Than Honorable Conditions for Misconduct (Serious Offense).  Based on the Applicant’s record of service in the current enlistment, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends his post-service accomplishments are worthy of consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of financial stability and continuous employment, evidence of current employment achievements, and excerpts from his official military file.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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 .  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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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