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

FOR OFFICIAL USE ONLY

ex-SK2, USN
Docket No. ND06-00709

Applicant’s Request

The application for discharge review was received on 20060502.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070222.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4 to 1 that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct (civil conviction).

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	No decisional issues.

Documentation

In addition to the service and medical record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Letter from K_ M_, LT, JAGC, USN, dtd April 19,2006
Excerpts from Applicant’s service record (5 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USA	19900924 - 19970411	HON
	Inactive: USNR (DEP)	2000328	COG
	Active:   USN	20000329 - 20031125	HON

Period of Service Under Review:

Date of Enlistment:  20031126		Date of Discharge:  20050729

Length of Service (years, months, days):

	Active:    01  08  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  32

Years Contracted:  6

Education Level:  12				AFQT:  48

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)		Behavior:  2.0 (3)		OTA:  3.11

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Army Achievement Medal (2), Meritorious Unit Commendation, Coast Guard Meritorious Unit Commendation, Fourth Navy Good Conduct Medal for period ending 02JUN07, National Defense Service Medal (2), Global War on Terrorism Service Medal, Armed Forces Service Medal, Army Overseas Service Medal (2), NATO Medal, Army Service Medal, Army Driver’s Badge, Sharpshooter Badge, Marksmanship Badge, Enlisted Submarine Warfare Specialist Breast Insignia.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT (CIVIL CONVICTION), authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events: 

031126:	Reenlisted this date for a term of 6 years.

050203:	Applicant pled guilty to Misdemeanor Sexual Battery as part of a plea agreement.

050309:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - civilian conviction.

050317:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050404:	Civil Conviction: Suffolk Circuit Court for violation of sexual battery (misdemeanor).
Sentence:  Jail for 12 months (suspended nine months).  Member is to serve 90 days on weekends and have supervised probation for 2 years.  Member paid victim restitution of $150 and $207 court costs.

050510:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct - civilian conviction and recommended retention.

050531:	Commander, Undersea Surveillance, concurred with the administrative discharge board and recommend retention.

050613:	Commander, Submarine Force, U.S. Atlantic Fleet, concurred with the administrative discharge board’s findings and recommended approval of the recommendation.

050711:	Chief of Naval Personnel recommended the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to civil conviction.

050715:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed the recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050729 by reason misconduct due to civil conviction (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to civilian conviction.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his guilty plea to Misdemeanor Sexual Assault on 20050203.  This is a serious offense for which a punitive discharge is authorized and typically warrants a characterization of service as under other than honorable conditions.  The Applicant was so notified on 20050309.  Despite an administrative board and the chain of command recommendations for retention, the separating authority, on 20050718, directed discharge with a characterization of service as general (under honorable conditions).  Based upon the above review, the Board, by majority vote, concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  There is no error of fact, law, procedure, or discretion that might afford the Applicant relief.

While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted a letter of support for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the discharge at that time.  Representation is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 
28 July 2005 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 IV - INFORMATION FOR THE APPLICANT

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.  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”.

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