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

ex-AOAN, USN
Docket No. ND01-00556

Applicant’s Request

The application for discharge review, received 010321, 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 did not list any 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The discharge was inequitable because it was based on the amount of individuals allegedly involved.

2.  My discharge should be upgraded because of the important role I played in the military.  (qualifications, leadership, etc.)

3.  My discharge should be upgraded because I except and understand my involvement of the incident.

4.  My discharged should be upgraded because I want to prove myself to my family, the military and myself that I salvagable, and I can make better decisions.

5.  My discharged should be upgraded because I want to be apart of the military again.

6.  The investigation leading up to my discharge was misleading and unjust.  Witnesses were provoked into making false statements.

7.  Before any court-martials are Art 15 took place were were punished and ridiculed by superiors (E-7 to O-4) and subordinates in my squadron.

8.  N.C.I.S. agents did not use evidence retreived from the room(s) were the incidence took place in determining guilty or innocence.

9.  INDECENT ACTS I BELIEVE IS SERIOUS, but I do not believe a summary court-martial and discharge (O.T.H.) were fair.

I am a law abiding citizen with great work background, but the military is were I want to be.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960623 - 961027	COG

Period of Service Under Review:

Date of Enlistment:  961028		Date of Discharge:  000519

Length of Service (years, months, days):

	Active:    03  06  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (5)	Behavior:  3.00 (5)		OTA:  3.23

Military Decorations:  NMCAM

Unit/Campaign/Service Awards:  AFEM (2), NER, SSDR (2), NMCOSR (3), NUC (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

981104:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 31Aug98, to wit: having an unauthorized guest in his quarters.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

000428:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 134:
	Specification: Indecent act, to wit: having sex in the presence of other people.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $450.00, restriction for 60 days, reduced to ADAN.
	CA action 000502: Sentence approved and ordered executed.

000429:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000429:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000503:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  AOAN (applicant) was convicted at a Summary Court-martial for committing indecent acts after thoroughly reviewing the investigation and court-martial record of trial, I find that AOAN (applicant's) conduct was inexcusable and intolerable as well as criminal.  His conduct is a significant departure from that expected of members of the naval service.  Therefore, I strongly recommend that AOAN (applicant) be separated with an Other Than Honorable discharge.

000504:	Commander, Carrier Group FIVE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000519 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 first issue states:  “The discharge was inequitable because it was based on the amount of individuals allegedly involved.”  The applicant was found guilty at Summary Court Martial of violation of UCMJ Article 134, Indecent Acts.  The Board found no inequity in the discharge.  Relief is not warranted.

The applicant’s second issue states:  “My discharge should be upgraded because of the important role I played in the military.  (qualifications, leadership, etc.).” The applicant’s misconduct outweighed the positive contributions he made during his enlistment.  The Other Than Honorable discharge accurately characterizes the applicant’s service.  Relief is denied.

The applicant’s third issue states:  “My discharge should be upgraded because I except and understand my involvement of the incident.”  The Board found this issue non decisional.  Remorse, acceptance or understanding of the offense committed are not grounds for which this Board will grant relief.  Relief is not warranted.

The applicant’s fourth issue states:  “My discharged should be upgraded because I want to prove myself to my family, the military and myself that I salvageable, and I can make better decisions.”  The Board found this issue non decisional.  The Board will not grant relief as a means for an applicant to “prove himself.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant’s fifth issue states:  “My discharged should be upgraded because I want to be apart of the military again.”  The Board found this issue non decisional.  The applicant’s desire to rejoin the service is not reason for the Board to grant relief.  Relief not warranted.

The applicant’s sixth and seventh issues state:  “The investigation leading up to my discharge was misleading and unjust.  Witnesses were provoked into making false statements.” And “Before any court-martials are Art 15 took place we were punished and ridiculed by superiors (E-7 to O-4) and subordinates in my squadron.”  After review of the applicant’s service record, the Board found no impropriety or inequity in the discharge.  The applicant failed to provide any documentary evidence to support his issues.  Relief is denied.

The applicant’s eighth issue states:  “N.C.I.S. agents did not use evidence retrieved from the room(s) were the incidence took place in determining guilty or innocence.”  The applicant did not adequately explain the relevance of this issue.  The record shows the applicant was found guilty at Summary Court Martial of Indecent Acts.  Relief is denied.  

The applicant’s ninth issue states:  “INDECENT ACTS I BELIEVE IS SERIOUS, but I do not believe a summary court-martial and discharge (O.T.H.) were fair.”  The Board found no impropriety or inequity in the applicant’s discharge.  The applicant’s misconduct warranted separation with a characterization of Other Than Honorable.  Relief is denied.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

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