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

ex-FN, USN
Docket No. ND01-00335

Applicant’s Request

The application for discharge review, received 010124, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before a traveling panel closest to Arcadia, Florida.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area and being incarcerated precludes you from traveling to the Washington, D.C. area at this time.  Accordingly, the NDRB advised applicant he would receive a documentary review in lieu of a personal appearance hearing review.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010829.  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 – convicted by a civil court during current term of military service, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My command abused its authority by discharging me, under other than honorable conditions, for a conviction in a civil court, which never occurred.  Thus, I should receive an Honorable discharge, under honorable conditions, with a re-enlistment code of RE-1.

2.  As my Service Record is otherwise without blemish, I should receive an Honorable discharge, under honorable conditions, with a re-enlistment code of RE-1.

3.  I should be awarded the Rank of E-4, as this rank was denuded me because of the Administrative Action resulting in my improper discharge.

4.  The Naval Discharge Review Board should recommend that the Comptroller pay me for the remaining time of my full enlistment.

Documentation

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

American Legions informal comments dated August 9, 2001
Letter from applicant dated December 15, 2000
Copy of DD Form 214
Nineteen pages from applicant's service record
Letter from applicant to Judge Advocate General dated December 28, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840131 - 840201	COG

Period of Service Under Review:

Date of Enlistment:  840202		Date of Discharge:  860102

Length of Service (years, months, days):

	Active:    01  11  01
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  8			AFQT:  70

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.80 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Convicted by a civil court during current term of military service, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

841010:	Applicant to unauthorized absence 0900, 10Oct84.

841011:	Applicant from unauthorized absence 1515, 11Oct84 (1 day/surrendered).

850312:	Applicant admitted in family court that he did sexually assault a child, 3 years of age on 8 October 1984.
Pled: Nolle Prosequi 
Sentence: Attorney General's probation

850617:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction for sexual assault upon a three year old female.

850617:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

850924:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to a civil conviction, and by a unanimous vote that the misconduct warranted separation, and recommended discharge under other than honorable conditions and recommended the discharge be suspended for 12 months.

Undated:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding officer’s comments (verbatim): FN (applicant) is an intelligent and knowledgeable sailor; however, he fails to perform to his full potential.  His initiative and reliability are unsatisfactory, and his appearance is below average.  Often times, he has difficulty in accepting orders; thus, making him unreceptive to authority.  He is an administrative burden to his work center.  Notwithstanding the recommendation of the administrative discharge board for suspension of the separation, I advocate his immediate discharge from the naval service under other than honorable conditions.

851220:	CNMPC directed the applicant's discharge under other than 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 860102 under other than honorable conditions for misconduct due to civil conviction (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).

In response to applicant’s issue 1, the applicant was charged with sexual assault against a 3-year old child, in the state of Delaware.  The charges were dismissed under the conditions that the applicant sign a statement that he committed the sexual assault, that he seek psychological and/or psychiatric counseling and submit quarterly reports to the office of pre-trial services.  The applicant was also placed on Attorney General’s probation.  The results of the above actions would leave the applicant with no criminal conviction and allow him to dispose of the matter quickly.  Unfortunately for the applicant, his admittance to the sexual assault charges is sufficient grounds to warrant an administrative separation.  An administrative separation board was convened on behalf of the applicant.  The board voted 2 to 1 that the applicant committed the misconduct and voted unanimously to separate the applicant with an Other Than Honorable discharge.  A 12 month suspension of the separation was also recommended by the board.  On 20 December, 1985, CNMPC directed the applicant’s discharge with an Other Than Honorable discharge.  The discharge was proper and equitable.  Relief denied.

In response to applicant’s issue 2, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a single misdeed.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The discharge was proper and equitable.  The NDRB does not have the authority to change reenlistment codes.  The applicant will have to petition the Board of Correction of Naval records (BCNR) to have his reenlistment code changed.  Relief denied.

In response to applicant’s issues 3, the applicant was given his due process, as required by Navy regulations for his admittance to sexual assault of a three year old baby.  The Military Personnel Manual, Article 1910-233 requires mandatory processing for separation for deviant sexual behavior.  The withholding of his advancement to E-4 and accompanying Other Than Honorable discharge was proper and equitable.  Relief denied.

In response to the applicant’s issue 4, the board has no authority to direct the comptroller to pay the applicant for the remaining time of his full enlistment.  This matter will have to be petitioned through the Board of Correction of Naval Records (BCNR).  Relief denied.

Since the applicant is past the 15 year limit for the NDRB, his only recourse will be to petition the Board for Correction of Naval Records, using DD Form 149, to request an upgrade to his discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 10/84, effective 17 Sep 84 until 15 Dec 85, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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