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Docket No. ND01-00675

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

 ex-ET2, USN
Docket No. ND01-00675

Applicant’s Request

The application for discharge review, received 010423, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The applicant did not designate a the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) firsts conducts a documentary review prior to any personal appearance hearing.  Subsequent to application, the applicant obtained representation by the Veterans of Foreign Wars. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON ONE ISOLATED INCIDENT (OF WHICH I STILL CLAIM MY INNOCENCE) IN 15 YEARS AND 10 MONTHS OF SERVICE WITH NO OTHER ADVERSE ACTION.  ADDITIONALLY I WAS RECOMMENDED FOR RETENTION AFTER A SPECIAL COURT MARTIAL ON 21 APR 95 AND AN ADMIN SEPARATION BOARD ON 15 MAY 97.  THE CO OF NAS JAX DID NOT AGREE WITH THE ADMIN SEPARATION BOARD DECISION AND RECOMMENDED DISCHARGE WHICH WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY.  I AM REQUESTING AN UPGRADE TO AN HONORABLE DISCHARGE AND AN RE-CODE UPGRADE TO RE-1.

Submitted by VFW:

2.  We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.

Documentation

Applicant's official service and medical record could not be obtained by the Board; however, the applicant did provide some information for the Board to consider:

LT K_ E. K_, JAGC, ltr of 19 Jun 97 recommending applicant's retention in Navy
Applicant's niece statement on Sep 27, 1995
T_ F_'s statement dtd Sep 22, 1995
Copy of DD Form 214 (2 copies)
Applicant's letter o the Board dtd May 12, 2001 (4 pages)

PART II - SUMMARY OF SERVICE

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

OFFICIAL SERVICE RECORD WAS NOT LOCATED AND THEREFORE, NOT AVAILABLE TO BOARD FOR REVIEW.

	Active:   USN			840824 - 900529	HON (not verified)
					810917 - 840823	HON (not verified)
	Inactive: USNR (DEP)	810728 - 810916	COG (not verified)

Period of Service Under Review:

Date of Enlistment:  900530		Date of Discharge:  970812

Length of Service (years, months, days):

	Active:    07  02  13
	Inactive:  None

Age at Entry:  18

Years Contracted:  5 (extended to 97Nov09) [Extracted from CO, NAS JAX ltr of 
9 Jun 97.]

Education Level:  12 (not verified)	AFQT:  Not available

Highest Rate:  QM1(SS)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (5)	Behavior:  3.80 (5)		OTA:  3.80

Military Decorations:  NAM(3)

Unit/Campaign/Service Awards:  AFCM, MUC, NUC, GCM (3), NATO Medal, Expert Pistol Ribbon, Expert Rifle Ribbon, NDSM, SSR(5), Recruiter Ribbon, SSW Insignia, EAWS Insignia, ESWS Insignia, SSBN Patrol Pin, Navy "E" Ribbon

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

900530:	Reenlisted at the Navy Recruiting District, New York for 5 years.

950421:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 92, 13 Specifications: violation of a lawful general regulation.
	Specification 1:  wrongfully attempting to form a dating or social relationship with prospect S. M_ on or about Jun 94
	Specification 2:  wrongfully engaging in physical contact with prospect  S. M_ by hugging her on or about Aug 94
	Specification 3:  wrongfully harassing prospect S. M_ on or about Aug 94.
	Specification 4:  wrongfully harassing and using abusive language toward prospect T. F_ on or about Jul 94.
	Specification 5:  wrongfully engaging in physical contact with prospect T. F_ by taking her hand in his, moving it to his mouth and licking her fingers on or about Aug 94.
	Specification 6:  wrongfully attempting to form a dating or social relationship with and by harassing prospect T. W_ on or about 22 Sep 94.
	Specification 7:  wrongfully engaging in physical contact with C. H_, a prospect, applicant or DEP person on or between 1 Aug and 14 Sep 94.
	Specification 8:  wrongfully entering the hotel rooms of applicants C. H_ and D. S_ at a MEPS lodging facility, on or about 11 Aug 94.
	Specification 9:  wrongfully engaging in physical contact with applicant C. H_, on or between1 Aug and 14 Sep 94.
	Specification 10:  was derelict in performing his duties in that he willfully failed to ensure applicant C. H_'s prior drug usage and hospitalization were reported and recorded during her processing for enlistment, as it was his duty to do, n or between 1 Aug and 14 Sep 94.
	Specification 11: by harassing M. F_, an applicant or DEP person, on or about Oct 93.
	Specification 12:  by wrongfully engaging in physical contact with M. F_, an applicant or DEP person, by having intercourse with her on or between Oct 93 and 1 Feb 94.
	Specification 13:  by wrongfully sexually harassing AKAA M. F_, USN, by calling her into his office, appearing before her in boxer shorts and asking her to "feel his silk" or words to that effect, on or about Apr 94.
	Charge II:  violation of the UCMJ, Article 128 (4 Specifications) 
	Charge III:  violation of the UCMJ, Article 134 (7 Specifications and an additional Charge of Article 134:
	Specification 1:  on or about Aug 94 commit an indecent assault upon S. M_ by holding her body against his without consent.
	Specification 2: on or about Aug 94 commit an indecent assault upon T. F_ by taking her hand in his, moving it to his mouth and licking her fingers.
	Specification 3:  on or about 22 Sep 94 communicate indecent language to T. W_.
	Specification 4: on or between 1 Aug and 14 Sep 94 commit an indecent assault upon C. H_ by touching her on the breast, pubic area and buttocks.
	Specification 5: on or about 11 Aug 94 commit an indecent assault upon C. H_ by touching her pelvic area and placing her hand on his penis.
	Specification 6: on ora bout 19 Aug 94 indecently exposed his genitals I public.
	Specification 7: on or about Nv 94 communicated indecent language to L. F_ and M. F_.
	Additional specification:  on or between Oct 93 and Feb 94 commit adultery.
	Findings:  to Charge I and specifications 2, 4, 5, 8, 12, and 13 thereunder, guilty.
	Charge II and specifications 1 - Not guilty and specifications 2, 3, 4, - dismissed.
	Charge III and specifications 2 and additional charge of 134 - guilty
	Sentence:  Confined 15 days, serve 45 days hard labor without confinement, forfeiture of $500 per month for 6 months, reduction to E-5, and letter of reprimand.
	CA 950628:  Sentence approved and ordered executed.

950423:	Applicant confined to NAS Jacksonville Brig.

950508:	Returned to full duty.

950628:	Punitive Letter of Reprimand issued to applicant.

960531:	Applicant petitioned for a new trial.

970331:	JAG denied new trial.

970414:	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 Special Court-Martial on 21 Apr 95 as documented in service record.

970414:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970521:	An Administrative Discharge Board, by a vote of 2 to 1, recommended the applicant be retained.

970522:	Dissenting Board Member's (CDR L_ T_, USN) statement .

970609:	Commanding officer recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial on 21 Apr 95.  Commanding officer’s comments (verbatim):  "a.  I do not concur with the Board's recommendation for retention of ET2 (Applicant).  I believe the seriousness of the misconduct clearly supports additional review of this case for separation.

	b.  Petty Officer (Applicant) was in a position of trust.  He was in the forefront, dealing with the public on behalf of the Navy.  He violated general regulations by sexually harassing, sexually assaulting, and committing adultery with prospective recruits.  His misconduct victimized prospective female recruits and the reputation of the naval service.  His actions cannot be condoned.  I strongly believe that not separating ET2 (Applicant) sends the wrong signal regarding the Navy's policy on sexual harassment.

	c.  I request this case be forwarded for further review by the Secretary of the Navy.  Because of ET2 (Applicant)'s otherwise outstanding service record, I recommend his separation be characterized as General (under Honorable conditions)."

SEPARATION AUTHORITY NOT AVAILABLE TO THE BOARD.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970812 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense - indecent acts, adultery, etc (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 inequitable because it was an isolated incident in 15 years and 10 months of service with no other adverse action.  Additionally, he was recommended for retention by the Special Court Martial and the Admin Board, but the CO did not agree and recommended discharge which was approved by the Assistant Secretary of the Navy.  The NDRB did not find the discharge inequitable based on an “isolated incident in 15 years 10 months” of service.  The record shows the applicant was found guilty at Special Court Martial of violations of UCMJ Articles 92, violation of a lawful order 6 specs., Article 134, indecent assault, and Article 134, Adultery.  All of these offenses are considered serious military offenses.  The Board found the applicant’s discharge (General) equitably assigned.

The applicant’s issue that the Special Court Martial and Admin Board did not recommend separation is irrelevant.  The applicant was properly processed for separation following his conviction at Special Court Martial of serious military offenses.  The applicant was afforded his due process throughout the proceedings.  Although the Admin Board recommended by a vote of 2-1 for retention, the Commanding Officer is not obligated to concur with the recommendation.  Finally, the separation authority takes recommendations into consideration, but is in no way obligated to support recommendations forwarded up the chain of command.  Therefore, this issue does not present a matter of impropriety or inequity.  Relief is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel Command, Pers-814, 5720 Integrity Drive, Millington, TN 38055.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

The applicant’s second issue s submitted by the VFW states:  “We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.”  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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

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/A9235/A9219/A0227/A9221/A9225