., XXX-XX-, ex- MA2, 

Current Discharge and Applicant’s Request

Application Received: 20181012
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SEXUAL PERVERSION)
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 19940627 - 20030105  

Period of Service Under Review:
Date of Enlistment:  20030106	Age at Enlistment:  28
Period of Enlistment:  6 Years   Extension
Date of Discharge:  20080822	Highest Rank/Rate:  MA2
Length of Service:  05 Year(s)  07 Month(s)  15  Day(s)
Education Level:  12	AFQT:  51
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.0 (6)   Behavior/Conduct: 3.7 (6)   OTA: 3.67 

Awards and Decorations (per DD 214):	NMCAM (2) NUC MUC GCM (4) NDSM GWOTEM GWOTSM AFEM SSDR (2) HSM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  ICHA, 20080313 - 20080822, 162 days

NJP:  NONE SCM:   SPCM:   CC:   

Civil Arrest:  1

- 20080315:	Offense:  Incarcerated and charged with Child Sexual Abuse, 15 specifications.

Retention Warning Counseling:  1

- 20051115:	For failure to meet body composition standards. 

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should include:  “NAVY AND MARINE CORPS ACHIEVMENT MEDAL (2), NAVY AND MARINE CORPS COMMENDATION MEDAL”
	  : “20080313-20080822 (162)”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

NDRB Documentary Review Conducted (date):	20120613
NDRB Documentary Review Docket Number:	ND11-00698
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:  	
	Witness E-2:			Witness C-2:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper and inequitable because he is innocent of his criminal offenses.
2.	The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.  

Discussion

Date:  20210415		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant's record of service included:

 Civil Arrest

Issue 1:  The Applicant contends his discharge is improper and inequitable because he is innocent of his criminal offenses.

In support of this issue, the Applicant provided his account of his criminal offenses and he still maintains his innocence today.  In 2008, the Applicant indicated that years of Navy deployments had taken a toll on his relationship with his wife.  In March 2008, his wife brought upon charges of Child Sexual Abuse against him.  When questioned by the South Hampton Police Department, the Applicant was charged with 15 counts of Child Sexual Abuse.  Specifically, the Applicant was accused of molesting his two young daughters over the course of a four year period.  The Applicant stated that these charges were frivolous and the stories from his children had changed over time and were coerced by his wife.  At his criminal preliminary hearing, the Applicant asserted that he thought he had a good case as there was no physical or medical evidence and the court relied on the testimony of his wife, two daughters, and two neighbor children who had been told of the sexual abuse from his daughters.  The Applicant indicated he was presented two options at his preliminary hearing; either accept an Alford plea deal or move forward with a trial where he would be expected to counter his children’s statements.  While understanding a trial may have been difficult on his children, the Applicant stated that he accepted the Alford plea deal.  In 2009, the Applicant accepted his plea deal on two felony counts of Sodomy and two counts of Sodomy with an object.  The Applicant was sentenced to 16 years of incarceration and was required to register as a sex offender.  The Applicant remains incarcerated today.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Following a thorough review of the Applicant’s documentation and testimony, the NDRB found that his criminal conduct warranted separation from the Naval service.  Furthermore, the NDRB reasoned that his command acted properly and equitably during Administrative Separation proceedings as they had reviewed sufficient evidence that supported his criminal charges.  The Applicant’s unsupported claims of innocence has no bearing in this case as it was his obligation to contest the charges at the time that they were made, at a criminal trial, or in a court appeal.  The NDRB recognized the Applicant accepted an Alford plea in which he maintained his innocence.  However, in this same Alford plea, he acknowledged that by going to trial, there would have been reasonable evidence presented by the prosecution that would have likely persuaded a judge or jury to find him guilty beyond a reasonable doubt.  Without any compelling court documentation to further support the Applicant’s innocence, the NDRB determined that he engaged in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service and the awarded characterization of service was warranted.  

Issue 2:  The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.  
In support of this issue, the Applicant provided a summary of his in-service highlights and his achievements while incarcerated.  The Applicant described himself as a good sailor who often went above and beyond what was expected of him.  He successfully cross-rated from an engineering mechanic to master-at-arms, completed multiple sea-service deployments and overseas tours, was awarded for his professional competence, and participated in humanitarian operations.  Since separation, and while incarcerated, the Applicant has been a model inmate.  He is an Adjutant for his American Legion Post; has initiated religious program activities for other inmates; is involved in inmate veterans programs; and is leading and assisting other inmates in a veterans college admission program.  Specific to his service with the American Legion, the Applicant has initiated and overseen many fundraising opportunities to support local charities and outreach opportunities.  As a result of his direct efforts, his American Legion post has been recognized at the local, regional, and state levels.  Along with his petition and hearing, the Applicant provided a personal statement, various prison records, two character statements, two support letters from his children, and two individuals provided character testimony. 

In review of the evidence of record, the NDRB found the Applicant had a previous nine year period of Honorable service and the period that is subject to discharge review is five years and seven months.  The NDRB noted the Applicant had largely performed well in his 14 years and two months of total service.  The Applicant was promoted to Second Class, completed periods of sea-service and overseas assignments, and was awarded a Navy and Marine Corps Commendation Medal, two Navy and Marine Corps Achievement Medals, two Humanitarian Service Medals, and four Good Conduct Medals.  However, in 2008, the Applicant was charged with 15 counts of Child Sexual Abuse.  The record also indicated a 162 day period of time lost in which he was incarcerated by civil authorities at the time of his criminal charges.  The Applicant was ultimately separated from service under the basis of Misconduct – Sexual Perversion. 

The characterization of service 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 shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Additionally, the NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  

In full review of this case, the NDRB found the Applicant service outside of his misconduct was noteworthy and given his current environment, he has exhibited good conduct and is making the most of his afforded opportunities.  However, the NDRB determined his misconduct was a significant departure of conduct from the members of the Naval service and his in-service and post-service conduct and achievement was not sufficient enough to mitigate or absolve him of his very serious criminal offenses.  Consequently, the NDRB found this discharge was equitable and will remain as issued.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT (SEXUAL PERVERSION) with a corresponding separation code of HKL, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.