ex-HM1, 

Current Discharge and Applicant’s Request

Application Received: 20220627
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:	 19881212 - 20060725  

Period of Service Under Review:
Date of Enlistment:  20060726	Age at Enlistment:  48
Period of Enlistment:   Years   Extension
Date of Discharge:  20080326	Highest Rank/Rate:  HMC
Length of Service:  01  Year(s)  08  Month(s)  00  Day(s)
Education Level:  15	AFQT:  91
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.5 (2)   Behavior/Conduct: 2.0 (2)   OTA: 3.08 
Fitness Reports: 

Awards and Decorations (per DD 214):	NMCCM(4) NMCAM(5) GCM(5) NDSM(2) NMCOSR(3) 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  NONE  SPCM:    CIVIL ARREST:    CC:    

SCM:  1

- 20070803:	Article 92 (Failure to obey order, regulation), 2 specifications
	Article 125 (Sodomy) 
	Article 134 (General article) Adultery
	Sentence: RIR E-6 
	CA: The sentence is approved and ordered executed 

Retention Warning Counseling:  1

- 20080326:	Assigned reenlistment code of RE-4.  

NDRB Documentary Review Conducted (date):	20090416
NDRB Documentary Review Docket Number:	ND09-00626
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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
19881212 UNTIL 20060725”
		
The NDRB will recommend to Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

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 11, effective 26 April 2005 until 11 June 2008, 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 that he should be retired from Active Duty with full benefits of retirement. 
2.	The Applicant seeks an upgrade to qualify for U.S. Department of Veterans Affairs (VA) benefits.
3.	The Applicant seeks an upgrade to following the repeal of Department of Defense (DoD) “Don’t Ask, Don’t Tell” (DADT) policy and change to the language of Article 125 of the Uniform Code of Military Justice (UCMJ). 
4.	The Applicant contends that his 19 years of outstanding military service and his post service achievements are deserving of a discharge upgrade. 
5.	Board Issue for a change to the Narrative Reason for Discharge.
Discussion

Date:  20230118		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 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 NDRB 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:

  for  of the UCMJ:  
Article 92 (Failure to obey order, regulation) 
Article 125 (Sodomy)
Article 134 (General article)

:  The Applicant contends that he should be retired from Active Duty with full benefits of retirement.   

The NDRB does not have the authority to determine if the Applicant may qualify for military retirement benefits.  Only the Board for Correction of Naval Records (BCNR) can grant this type request.  If the Applicant desires to petition the BCNR for the determination of qualifying for military retirement benefits, DD Form 149 must be completed and sent to the BCNR at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. The BCNR website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

:  The Applicant seeks an upgrade to qualify for VA benefits.

The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  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 as basis upon which the NDRB can grant relief.

However, upon administrative review the NDRB found the Applicant had a period of “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19881212 UNTIL 20060725” that was not annotated on the Applicant’s original DD 214.  Consequently, presentation to the VA of this period of “Continuous Honorable Service,” is likely to avail the Applicant of most or all VA benefits.  

Although the NDRB will recommend to Commander, Navy Personnel Command that the DD 214 be corrected as appropriate, it is the Applicant’s responsibility to ensure these administrative changes are incorporated into the record by the respective Service Headquarters.  Moreover, it is the Applicant’s sole responsibility to submit this period of “Continuous Honorable Service” to the VA for a determination of eligibility for VA Benefits.   

The Applicant is directed to the Addendum, specifically, the paragraph regarding the VA, who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.

Issues 3-4:  The Applicant seeks an upgrade to his discharge following the repeal of the DoD DADT policy and change to the language of Article 125 of the UCMJ.  Additionally, the Applicant contends that his 19 years of outstanding military service and his post service achievements are deserving of an upgrade.

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.  

The Applicant contends his discharge is inequitable due to the repeal of the DoD DADT policy on homosexuals serving in the military and the change to language of Article 125 of the UCMJ.  The Applicant was discharged for homosexual conduct while in a duty status with another Sailor who was four grades junior to the Applicant.  Additionally, the incident between the Applicant and the junior sailor was determined by an investigation to be consensual.  However, additional misconduct occurred during this event as documented by multiple other violations of the UCMJ by the Applicant, specifically Article 92 (fraternization) and Article 92 (dereliction of duty).  In the resulting Summary Court Martial, the Applicant was found guilty and reduced in rank from E-7 to E-6.  Subsequently, the Applicant was processed by an Administrative Separation Board for discharge with a characterization of Under Other Than Honorable Conditions.      

In addition, the Applicant suggests his post-service achievements warrant consideration for an upgrade.  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.  Besides the Applicant’s statement during the hearing, he failed to provide any documentary evidence on his behalf for post-service consideration.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  Without post-service documentary evidence, the NDRB did not consider the Applicant’s post-service conduct in making its determination. 

When reviewing discharges, the NDRB considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  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.  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. 

In this case, the Applicant’s service was 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.  In making its determination, the NDRB considered the totality of the Applicant’s service, both his misconduct and his overall outstanding military service.  Additionally, the NDRB noted that the Applicant had no other misconduct in his 19-year career.  The Applicant’s excellent military service is reinforced by the senior leadership that provided either witness or statement for the Applicant and his recommended his retention in the military during the administrative separation board.  The NDRB believes that the administrative separation of the Applicant from military service was unduly harsh as a reduction in rank from E7 to E6 is an adequate punishment.  Additionally, the Board presumed that the Applicant likely would not have been processed for military separation if the DADT policy did not exist at the time of the Applicant’s misconduct.  Consequently, by a vote of 2-1, the NDRB found a change in characterization of service to General (Under Honorable Conditions) is appropriate.  

Issue 5: Board Issue for a change to the Narrative Reason for Discharge.

The NDRB found a change to the Narrative Reason for Separation to Secretarial Authority was authorized and warranted.  The NDRB has broad authority to review Department of the Navy discharges.  In accordance with SECNAVMAN 5420.1, ¶ 214 (Review on Motion of the NDRB) the NDRB may initiate a Discharge Review even without an Applicant’s request up until the discharge date exceeds 15 years.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and if such a review reveals an impropriety or inequity, relief is in order.  Further, the NDRB does not require an applicant to make an express or implied contention; specifically, under ¶ 211 (Applications) an “applicant is encouraged, but not required, to identify an issue or issues as pertaining to the propriety or the equity of the discharge.” Thus, under ¶ 212 (Procedural Rights of the Applicant) the NDRB will consider that a request for review from an applicant who does not have an Honorable Discharge will be treated as a request for a change to an Honorable Discharge.  Similarly, an applicant may request a specific change in the narrative reason for separation.  If an applicant does not request a specific change in the reason for discharge, the NDRB will presume that the request for review does not involve a request for change in the reason for discharge.  However, this presumption does not waive “the NDRB’s responsibility to examine the propriety and equity of an applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted.”  Although highlighting the NDRB’s authority to review and change the narrative reason for discharge, the NDRB noted that “an applicant may not receive a less favorable discharge than that issued at the time of separation.” ¶ 207 (Objective of Review). 

Consequently, the NDRB held that it is authorized to make a change to the narrative reason for discharge.  Since the Applicant has been separated from military service, the DoD DADT policy has been repealed.  However, the Applicant was found to have misconduct in his current enlistment that do not meet the standards for an Honorable characterization.  Therefore, the NDRB held that the narrative reason for separation should be changed to Misconduct (Serious Offense). 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the NDRB found the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT (SERIOUS OFFENSE) with a corresponding separation code of GKQ, 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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.