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

ex-STG2, USN
Docket No. ND01-00468

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to completed service.  The applicant requested a personal appearance hearing discharge review in the Washington Capital Region.  The applicant did not designate a representative on the DD Form 293.  In the Acknowledgement letter to the applicant, he was informed that the naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010710.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned impropriety in the characterization of the applicant’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to:  HONORABLE /SECRETARY PLENARY AUTHORITY, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Dear Board Members:
I am requesting that my discharge be upgraded to honorable and that the reenlistment code be changed to RE- 1. Also, I am asking that the reason for discharge be changed to completed time in service.  In addition, I respectfully request that I receive full separation pay due to being involuntarily separated from the Navy and have my leave days given back to me.  I was discharged due to a civilian conviction that did not rise to the level of misconduct.  On July 1st 1999 my daughter ran away from home and left a note that if we contact the police things would only get worse, well they certainly did.  She made statements to her friends and the police that I was sexually abusing her.  She had made this kind of a threat in the past but latter retracted it.  This time the police and Social Services got involved and this false claim took on a life of its own.  The police and Social Services completely took what my daughter was saying as fact without interviewing all parties involved.  I was then charged with indecent liberties with a minor in a custodian relationship.  I was to have a hearing on the charge on the 21 " of October but a week before my lawyer called my up and told me that the prosecution has serious doubts about her telling the truth and this charge would not hold up in court.  They asked my lawyer if I would plead guilty to simple assault and told my lawyer that I will not plead guilty to anything.  He then explained what nolo contendere was.  I agreed to this because I did not what to have the rest of my family and friends testify against my daughter and I knew that Alma would realize what she did and would want to come back home.  Also the financial and emotional costs of continuing this was starting to impact my family and this would close this honorable ordeal once and for all. On the 21 of October 1999 1 plead nolo contendere to Simple Assault.  I was found guilty of Simple Assault and given 60 days in jail, all of which were suspended on condition of good behavior for one year.  I had no probation and spent no time in jail.  Appendix 12 of the MCM stated that no discharges are given for simple assault.  In addition, the circumstances of the offense did not warrant separation.  It was a simple assault charge and that was it.  My admin board was held on 4 May 2000 and the members concluded that no sexual assault occurred.  I was separated due to my civilian conviction of simple assault.  I should have not been separated due to my civilian conviction does not rise to the level of misconduct.  As stated in MILPERSMAN 1910-144 that when: the offense would warrant a punitive discharge per MCM.  Appendix 12 for the same or closely related offense, the specific circumstances of the offense warrant separation, civil sentence includes confinement for 6 or more months without regard to suspension, probation or early release. During the meantime because of the nature of the accusation my daughter had to live with her natural father in California.  My wife and I had conversations with Alma on the phone and she stated that she wanted to come back home.  We decided that she should stay there and finish school and would come back in the summer.  She strongly wanted to come back now but we held our ground.  I think that she realized what she did and wanted to be with her family again.  We picked her up at the airport on June 12 . To be honest with you I had some reservations about her coming back but now that she is home it feels like she never was gone and that we started off like we left "as a family'. I have served our Navy and country with honor for over I I years.  I should not have been separated based upon the civilian conviction.  I deserve an honorable discharge.  My military record speaks for itself and I have the full support of my chain of command.  After reviewing this case I am sure that the board members will come to the correct conclusion and correct this injustice.  Thank you for your time and concern in this matter.
Very Respectfully
(APPLICANT)

Documentation

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

Copy of DD Form 214
Copy of MIPERSMAN Article 1910-144 (Separation y Reason of Misconduct - Civilian Conviction)
Appendix 12 of the Manual of Court-Martial
Applicant's Warrant/Sentencing
CO, USS BARRY ltr of 13 Apr 00 to the Admin Board
Letter of Reference from Cdr J_ M. C_, dtd 20 Aug 99
Character Reference ltr from ASW Officer, LTJG E_ B_, dtd Aug 19, 1999
Character Reference ltr from Lt. D_ G. S_, USN
Character Reference ltr from STGC B_ D. L_, USN
Character Reference ltr from STGC R_ J. M_, USN dtd Aug 18, 1999
Applicant's Spouse ltr dtd Aug 14, 1999
Character Reference ltr from B_ P_ (DCAA)
Applicant's Spouse letter
Character Reference ltr from M_ F. V_ dtd 18 Aug 1999
10 Enlisted Performance Evaluations 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		940413 - 970212	HON
					880803 - 940412	HON
	Inactive: USNR (DEP)	880411 - 880802	COG

Period of Service Under Review:

Date of Enlistment:  970213		Date of Discharge:  000526

Length of Service (years, months, days):

	Active:    02  03  14
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  12			AFQT:  69

Highest Rate:  STG2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.5 (2)	Behavior:  4.0 (2)		OTA:  4.15 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), NAM (3), GCM (2), NUC, Navy "E" Ribbon, NUC, Recruiting Gold Wreath Award (4), LOC 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

970213:	Reenlisted for 6 years at the Navy Recruiting District, Richmond, VA.

990811:	Warrant of Arrest issued by the Juvenile and Domestic Relations District Court, Virginia Beach, VA for Felony, Class 6 (On or about 07/01/1999 while being eighteen years of age or over and maintaining a custodial or supervisory relationship with a child under the age of eighteen, with lascivious intent sexually abused A_ C_- minor child 16 years of age.)

990811:	NCIS Report of Investigation concerning sex abuse-child (II).

991021:	Civil Conviction:  Virginia Breach Juvenile & Domestic Relations District Court:  Accused present, charge was reduced to simple assault, accused pleaded "nolo contendere", guilty of simple assault.
	Sentence:  Jail sentence of 60 days imposed with all suspended conditioned upon being of good behavior and keeping the peace, and paying fines and costs.  No contact with victim.

000224:	Applicant's situation was reviewed by the Family Advocacy Program (FAP) Case Review Committee (CRC).  CRC recommended the following:  a - Psychosexual evaluation, b - To attend the FAP "Sex Offender Treatment Program" and c - Spouse to attend the "Non-Offending Parents Support Group".

000307:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense sexual perversion as evidence by the sexual battery of his step daughter.  

000307:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000310:	Applicant, requested a conditional waiver.  Willing to waive the administrative board if given an honorable discharge with the understanding that if request is denied, admin separation processing will continue and will have the right to elect an admin board or hearing.

000316:	Commanding officer recommended discharge with an honorable by reason of misconduct due to commission of serious offense - civil conviction.  Commanding officer’s comments (verbatim):  "Petty Officer (Applicant) has performed his duties with great distinction.  His service record contains 11 1/2 years of exemplary performance.  I am not alone in expressing faith in his character; he has the highest possible support from his chain of command.  Petty Officer (Applicant) was trusted as a Midshipman running mate while onboard USS SOUTH CAROLINA (CGN 37), and he served as a recruiter for over 2 years.
	     I find his explanation of events to be credible.  His character as demonstrated by his current and prior years of service as well as the willingness of Virginia Beach to plea bargain, support Petty Officer (Applicant)'s version of events.  I believe that Petty Officer (Applicant), when confronted with his options, acted in a manner consistent with what he believed at the time to be in the best interest of his entire family.  He choose to plead "no contest" to a lower charge.
	     In view of the nature of this case, Petty Officer (Applicant) is not recommended for further naval service.  However, given his exemplary military performance over eleven and a half years of distinguished service, I strongly recommend discharge with a characterization of Honorable."

000331:	COMNAVSURFORLANT denied applicant's request due to conditional waivers are not authorized for misconduct where processing is mandatory.  This case requires processing as it involves substantiated child sexual abuse.  Member to be reprocessed for misconduct due to commission of a serious offense and misconduct due to civil conviction.

000331:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000413:	CO, USS BARRY letter to the Admin Board strongly recommended discharge with a characterization of Honorable.

000504:	An Administrative Discharge Board convened at the TPU Norfolk VA, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed misconduct due to commission of a serious offense, found that applicant had committed misconduct due to a civil conviction, that the misconduct warranted separation by reason of misconduct due to civil conviction, and recommended discharge be General under honorable conditions.

000515:	Letter of Deficiency issued.

000619:	CO, TPU, Norfolk VA advised COMNAVPERSCOM that applicant was  discharged on 26 May 2000 with a General (Under Honorable Conditions) by reason of misconduct due to civil conviction.  Commanding Officer's comments:  "Concur with the findings of the Administrative Board."

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 000526 with a General (Under 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 improper (C and D).

The applicant’s issue is accepted.  There was a full consideration of the applicant’s service record, civil conviction and evidence presented to the Board.  The Board determined that the applicant’s discharge was improper.  The Board found that, as stated in MILPERSMAN 1910-144, there is no punitive discharge warranted for a conviction of simple assault.  Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 30 Mar 00 to Present, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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