ex- MA3, 

Current Discharge and Applicant’s Request

Application Received: 20220916
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (CIVIL CONVICTION)
Authority for Discharge:   MILPERSMAN 1910-144 [CIVIL CONVICTION] 

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:	 

Period of Service Under Review:
Date of Enlistment:  20020523	Age at Enlistment:  
Period of Enlistment:   Years  18 MONTHS Extension
Date of Discharge:  20101008	Highest Rank/Rate:  MA3
Length of Service:  04  Year(s)  05  Month(s)  01  Day(s)
Education Level:  12	AFQT:  52
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.6 (6)   Behavior/Conduct: 3.3 (6)   OTA: 3.47 
Fitness Reports: 

Awards and Decorations (per DD 214):	NMCAM GCM NDSM GWOTSM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20061014 - 20100929, 3 years, 11 months, 15 days

SCM:    SPCM:    NJP:  NONE Retention Warning Counseling:  NONE

CIVIL ARREST:  1

- 20061014:	Charges:  Attempted Murder.

CC:  1

- 20070131:	Offense:  Attempted Murder. 
	Sentence: 5 ½ years confinement with forced labor at Prison.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560D), Change 29, effective 10 November 2009 until 19 September 2011, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

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

Applicant’s Issues

1.	The Applicant seeks an upgrade because his Command did not separated him during incarceration. 
2.	The Applicant seeks an upgrade because Japan’s judicial system isn’t binding on the military. 
3.	The Applicant seeks an upgrade because he was deprived of due process and his ability to have his case heard in a US court. 
4.	The Applicant seeks an upgrade because he did not have legal representation nor an administrative separation board.

Discussion

Date:  20230503		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:

:  The Applicant seeks an upgrade because his Command did not separated him during incarceration.

The Applicant, through his attorney, argued that his Command did not believe that he was guilty of the crime of attempted murder.  He supported this idea by stating that had his Command believed that he was guilty, they would have separated him from the military while he was incarcerated.  

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.  

In this case, the Board determined that this argument was no sound because the United States Navy is not legally permitted to separated service member’s that have been convicted and sentenced to prison time in Japan due to it’s Status of Forces Agreement (SOFA) with.  Relief denied.

:  The Applicant seeks an upgrade because Japan’s judicial system isn’t binding on the military. 

The Applicant contends that the US Navy is not bound by a decision made by the Japanese court in regards to his conviction.  He stated that the Navy may, not shall, accept a conviction by a foreign court.  

The Applicant asserts that a sailor on the Sasebo Base saw a person that they believed to be a Japanese national walking alone near the front gate.  That sailor stopped and questioned the Japanese national and determined that she did not belong on base.  The sailor called the Master-at-Arms (MA) dispatch and reported the person.  The Applicant explained that MA dispatch called the Applicant over the radio and asked that he escort the Japanese national off base after returns to dispatch and changes into his civilian gear since he is getting off of work.  After he was changed, the Applicant met up with the sailor and the Japanese national and escorted her off base.  The Applicant states that the Japanese national followed him for approximately 5 minutes at which point a voice in his head told him to turn around and he saw the woman charging at him with a knife.  He pushed her to the ground and she fell on her knife causing a serious stomach puncture wound.  He administered aid, called the Japanese police, and waited for them to arrive.  He did not contact his Command.  

The Applicant claimed that the Navy had a camera in the exact area that crime took place and that members of the Navy, likely JAGS, were present at every day of his trial.  

In this case, a legal representative was present at every moment of the Applicant’s trial, they had access to all of the evidence, they had access to all of the witnesses that could have corroborated the Applicant’s version of events, an investigation was conducted by NCIS, and they had access to a video of the crime.  In accordance with MILPERSMAN 1910-144, “Members confined in foreign jails may be processed for separation, but may not be discharged or separated from Service until completion of imprisonment and return to the United States… Foreign court convictions are not binding on administrative boards and do not preclude processing due to misconduct (serious offense and or civil conviction).”  After reviewing all of the evidence and witnessing the trial, the Applicant’s Command made the choice to send the Applicant’s case before a separation board for the crime of attempted murder.  The Board then made their own choice to separate the Applicant with an other than honorable discharge, they were not bound by the civil conviction.  The presumption of regularity has not been overcome. Presumption of Regularity is a presumption/proposition that Boards will presume Commander’s acted in good faith and that their actions were not arbitrary and capricious.  However, as a legal presumption (bubble) it can be busted, with rebuttable evidence.  Thus, the “needle” to bust the Presumption of Regularity (bubble) requires more than a mere uncorroborated statement from the Applicant (e.g. “…the Commander hated me.”) but less than preponderance or clear and convincing evidence; it requires substantial credible evidence to rebut the Presumption of Regularity.  Relief denied.

:  The Applicant seeks an upgrade because he was deprived of due process and his ability to have his case heard in a U.S. court. 

In this case, the agreement between Japan and the United States give the Japanese the right to take prosecutorial jurisdiction of U.S. service members if they commit a crime while off duty.  Service members are informed of this when they are stationed in Japan.  The Command and the U.S. Navy determined that a crime occurred while the Applicant was off duty and thus, the Applicant was not deprived of any right.  Here, we will be guided by the presumption of regularity and presumption that the Commander acted in good faith and that their actions were not arbitrary and capricious. 

Issue 4:  The Applicant seeks an upgrade because he did not have legal representation nor an administrative separation board.

The Applicant declared that he spoke to a legal representative on multiple occasions throughout his legal troubles.  At some points it was a JAG at others a legal Chief.  He does not recall whether he was assigned a JAG representative during his trial or whether he spoke with anyone after his sentencing but prior to his release from prison.  Upon his release from prison, the Applicant confirmed that he spoke with a JAG prior to returning to the United States.  

When reviewing discharges, the Board 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 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.  In making its determination, the Board read through the Applicant’s file confirming that an administrative separation board was conducted.  This was confirmed and approved by Admiral J. D. Kelly who was the separation authority.  The Board voted unanimously to separate the Applicant with an other than honorable discharge.  The Board was held in absentia in accordance with MILPERSMAN 1920-230 which states that, “an other than honorable (OTH) authorized discharge is awarded a discharge in ‘absentia;’ the member must be in an unauthorized absence (UA) status, detention, or confinement status.”  The same instruction also explains that, “[p]ersonnel detained or incarcerated by foreign civilian or military authorities outside of the jurisdiction of the United States (U.S.) will not be discharged in absentia. Note: This does not preclude processing the member for separation under the provisions of this article; to be affected upon return to U.S. custody and jurisdiction.”  In accordance with this instruction, the Applicant was processed for separation while he was confined but was not discharged until he was returned to U.S. custody and jurisdiction.  The Applicant has not overcome the presumption of regularity.  Relief denied.

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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 (CIVIL CONVICTION) with a corresponding separation code of GKB, 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.  (See www.va.gov/discharge-upgrade-instructions).  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, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order 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 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.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, see Find your nearest VA medical center.