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Docket No. ND00-01010

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

ex-STS1, USN
Docket No. ND00-01010

Applicant’s Request

The application for discharge review, received 000823, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  On 11 January 1996, I was approved for retirement under the T.E.R.A Program with a retirement date of 29 Feb 1996.  On 23 January 1996, while on terminal leave, I was arrested by civilian authorities and accused of a crime.  While incarcerated, Trident Training Facility's legal representative informed me that the Navy would not be pursuing legal action against me.  This was a civilian matter.  Trident Training Facility did, however, in an act that was both unjust and unAmerican, have my retirement cancelled.  My LPO informed me that the Executive Officer of TRITRAFAC had determined that I was "Guilty Until Proven Innocent" and acted to punish me on his own.  I was still awaiting formal hearings with civilian authorities.
When I was released by the convening civilian authorities pending formal hearings, I was forced to return to active duty.  Instead of allowing me to resume my usual teaching position as an Instructor at the Trident Sonar Operational Trainer, I was assigned to a Base Maintenance Unit commonly called "the Outcast" or "Leper Colony." There I was ordered to dig ditches and paint buildings.  The United States Navy was my family and when I needed their support the most, I was left feeling abandoned and unwanted.  This was a cold, cruel act.
When I was later incarcerated by civilian authorities TRITRAFAC took administrative action for my being "Absent Without Leave", a situation that existed only because TRITRAFAC had cancelled my retirement.  When the Administrative Board met, I was not allowed to attend.  Shipmates that wanted to speak on my behalf were discouraged from doing so by TRITRAPAC.  My family all lived over a thousand miles away and could not attend.  The results were obvious and preordained!
On 31 December 1996, just eleven (11) days prior to completing twenty years of service, I was given a Discharge "Under Other Than Honorable Conditions."
After giving Nineteen Years & 354 Days of honorable, superior service (see attached Document #1) and being approved for Early Retirement under the T.E.R.A. Program (see attached Document #2), I respectfully request you upgrade my discharge, and if within your authority, reinstate or recommend reinstatement of my retirement.  I have never been accused of, charged with, or convicted of any crime by the United States Navy that should interfere with this request.

This request is submitted per: Bureau of Naval Personnel (PERS-27B) see attached Document #3).  Respectfully Submitted for Your Action,

2.  We ask that after your careful review of the applicant's issue together with the evidence of record that you change the discharge as requested by the applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of Enlisted Performance Record for 1Jan91 to 29Feb96
Copy of message from BUPERS dated 11Jan96
Copy of letter re: temporary early retirement authority program dated January 24, 1997
Letter from applicant dated September 30, 2000
Copy of DD Form 214 for 30Mar85 discharge
Copy of DD Form 214 for 31Dec96 discharge
Copy of DD Form 215 dated September 17, 1997
Copy of DD Form 214 for 13Jul80 discharge
Letter of recommendation dated September 28, 2000
Character reference
Letter from applicant's mother
Character reference dated August 20, 1997
Copies of quarterly grade reports for Summer 1999, Spring 2000, Fall 1999, Winter 2000
Copy of certificate of completion of Stress/Anger Management dated 23 July - 12 September 1997
Copy of certificate of completion of Victim Awareness dated March 10 - April 30, 1998
Copy of certificate of achievement for completing Industrial Safety dated October 29, 1998
Copy of certificate of completion for Computer Basics dated January 8, 1997
Copy of certificate of completion dated September 26, 1996
Copy of certificate of completion for Transition and Relapse Prevention dated January 12, 1999
Copy of certificate of completion dated January 21, 1997
Copy of certificate of completion dated September 5, 1997
Copy of certificate of achievement dated October 22, 1998
Copy of certificate of achievement dated April 15, 1998
Copy of letter from Employment Security Department dated April 15, 1998
Copy of certificate of achievement dated March 13, 1998
Copy of certificate of achievement dated March 13, 1998
Copy of certificate of achievement dated March 13, 1998
Copy of certificate of achievement dated March 20, 1998
Copy of certificate of completion dated November 1996
Copy of certificate of completion dated April 21, 1998
Copy of certificate of completion dated April 21, 1998
Copy of certificate of completion dated February 10, 1997
Copy of certificate of completion dated February 21, 1997
Copy of certificate of completion dated October 1996
Copy of certificate of appreciation dated June 1997
Copy of participant certificate dated November 1996
Copy of applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN			770112 - 800713	HON
		   USN			800714 - 850330	HON
		   USN			850331 - 901231	HON
	Inactive: USNR (DEP)	761026 - 770111	COG

Period of Service Under Review:

Date of Enlistment:  910101		Date of Discharge:  961231

Length of Service (years, months, days):

	Active:    06  00  00
	Inactive:  None

Age at Entry:  32			Years Contracted:  6 (2 months extension)

Education Level:  12			AFQT:  97

Highest Rate:  STS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.86 (6)	Behavior:  3.93 (6)		OTA:  3.90
Performance:  NOB		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, MUC, NDSM, GCM (4), SPI

Days of Unauthorized Absence:  219

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900914:	NIS investigation report.

920226:	NIS investigation report.

940817:	NIS investigation report.

960111:	Applicant transfer to Fleet Reserve is authorized.  Effective 960229.

960125:	Applicant arrested for 1^st degree rape of a child, 1^st degree sexual molestation of a child, 2^nd degree rape of a child, 2^nd degree sexual molestation of a child, and sexual explotation of a child.  Scheduled to be arraigned in Kitsap District Court on 25Jan96.

960329:	Applicant entered a guilty plead to one count of 1^st degree chilc sexual molestation and one count of 2^nd degree rape of a child.  Applicant released without bond.

960403:	Authorization for applicant's transfer to the Fleet Reserve, under ther Temporary Early Retirement Authority (TERA) Program has been cancelled by Chief of Naval Personnel (PERS-27).

960525:	Applicant to unauthorized absence 0730, 25May96.

960528:	Civil Conviction:  Superior Court of Washington, County of Kitsap for violation of first degree child molestation, second degree rape of a child.
Sentence: Department of Corrections for 78 months, court cost and fees.

960531:	NIS Report

960722:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your pleading guilty to and be convicted in civil court of 1^st degree child molestation and 2^nd degree rape of a child.

960923:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

961230:	Applicant from unauthorized absence 2400, 30Dec96 (219 days).

Partial discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961231 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

The applicant’s issue states that his discharge was improper because he had been approved for retirement and was on terminal leave at the time of his arrest.  While the applicant was on terminal leave he was subject to the UCMJ.  The record shows that the applicant plead guilty to one count of 1^st degree child sexual molestation and one count of 2^nd degree rape of a child in civil court.  The applicant was processed for separation due to commission of a civil offense as evidenced by his civil conviction.  The Board found no impropriety or inequity in the discharge proceedings.  Relief is denied.

The applicant provided the Board with documentation of his accomplishments while incarcerated.  The Board recognizes the applicant is a model inmate, but requires documentation to support good citizenship.  The Board did not find the applicant’s post service conduct warrants a change in the discharge.  Relief is denied. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0107/A9237