Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND02-00841

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

 ex-SK3, USN
Docket No. ND02-00841

Applicant’s Request

The application for discharge review, received 020529, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228.  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.  Subj:	PETITIONING TO UPGRADE DISCHARGE

On 14 April 2001 1 came back from leave and was told from the legal officer that several girls that work for me on the mess decks have file charges against me for sexual assault.  These charge ranged from making sexual innuendoes to physical contact.  Needless to say I was stunned.  I erroneously as is turns out, was not worry because I was innocent of any crime and thought that the truth would come out.  As the mess deck master at arms I have had to deal with each of these service members, sometimes rather harshly in order to bring up their performance of their duties to an excitable level.  I even on occasion had to write up counseling chits and or report chits for infraction of the UCMJ mostly being UA.  I honestly believed that their actions would be seen simply as acts of revenge against their supervisor who they thought was picking on them. An investigation that took 2 months by NCIS in Japan and interviewed not only my accusers, but also every female that I have work with that they could find.  This list includes the names on my insert page 1. All of them sav, my accusers say that at no time was there any misconduct on my part.  Recently when I try to get copies of their statements I was surprise to find out that they have disappeared. I went to the jag office in Yoko Japan and spoke to the officer in charge, I requested legal representation and was told that I cannot get it until charges have been file.  These charges were not file until 20 minutes before my XOI.  As you can see this did not give me any time to consult legal representation.  This happen just before the ship (USS Frank Cable) left Japan to enroute to Guam. Once in Guam I requested a general court-martial, my request was denied by the commanding officer (Capt. S_ S_) who decided that I would go to NJP.  At the opening of the NJP Capt S_ stated "that the master criminal has arrived and that this could have gone to a court-martial but that would have taken to long and he want it to be over as soon as possible so the girls could get on with their lives".  This statement leads me to believe that Capt. S_ had already decided my guilt before having any of the evidence. At my NJP SA J_ stated "while in my office checking her email on my computer I came up behind her and made physical contact with her of a sexual nature this statement matches the NCIS statement that she gave.  After she was done with her statement the Capt. ask for my response I told him that this incident could not happen because the computer that she said that she was on is a stand alone and was not hook up to the LAN system.  The Capt. allows her to change her statement in the middle of the NJP so as to match the facts as he saw them, mainly my guilt. Also at my NJP SN G_ stated "during a GQ in Yoko Japan that she ask me to use my coat because it was cold and that when I stood up and handed her the coat that I made physical contact by grabbing her breast" MS2 S_ was there at the time of the supposed incident, and testify on my be have that he rembers her asking for the coat but I did not stand up nor did I make physical contact with her.  When MS S_ testify at my NJP that I did not grab her, the Capt. then ask him if this could not have happen at a another time and at another place.  MS2 S_ stated that SK2 C_was not being charge for another crime at another place or time. At my NJP I was not allow to face my accusers or even to talk to them, I was allow to ask question thru the Capt. only, and according to Capt. some of the girls who accused me were not even there so they could not even answer any of my question.  I have no idea how many of my accusers were there.
During my NJP the Capt. stop it to find my witness who was on liberty, we stop the NJP at 1700 31 may 2001 and restarted on 01 June 2001 at 0830.  When we stop on may 31 the Capt. suggested I go see a lawyer, by the time that I was release for the day the jag office was closed and was not due to open until 0900 01 June.  As you can see this did not give me time to see a lawyer. At the conclusion of my NJP the Capt. told the girls "that how sorry he was to have scum like me on his ship and as far as he can see I have been doing this my entire naval career and that it was now that I got caught".  I have had the privilege of working for some of the finest commanding officer in the navy, who would have stop this behavior long ago if it was happening.  None of them were blind or stupid.  Also I was given a direct order not to go near, talk to or even to look at them at all, since all of the girls work on the mess decks I ask the ships jag officer how I was suppose to eat if I cant go to the mess decks he said "that's my problem and to find a way but that I still can not go there when the girls are working."  Since the girls were in different shifts I could not go there at all.  This lasted for about 30 days until I ask the admin officer if I can get comrats because my wife had to bring me food so that could eat.  He told me no but he will make sure that I am allowed to eat, he made arrangement for the MAA's to escort me to the mess decks during breakfast and lunch and the duty MAA was suppose to take me for dinner but this hardly happen because they did not want to go. After my mast I place an appeal with sub group 7 in Japan and was taken off restriction until my appeal came back.  On 8 June 2001 while I was leaving the ship to go home I was approach by ma3 p_ and ask if I could give him a ride home since we live close to each other, as we were leaving the ship sn G_ approach us and said that she needs to talk to me I told her that I could get into more trouble and started to walk away.  She follows us out into the parking lot and stating, as she was sorry for everything that she has done.  I continue walking a way from her so that I would not get into trouble so I did not hear her statement in full, however ma3 p_ was walking with her and noted everything that she stated.  On the following Monday 11 June ma3 p_ gave a sworn statement as to the contense of her conversions.  I then submitted this as an amendment to my appeal to sub group 7. Sub group 7's jag officer call the ships jag officer if he knew about the master at arms statement and if they want to send a statement concerning it, the ships jag officer said no because the master at arms was unreliable, after which my unreliable witness was promoted to MA2.  Because he was label as unreliable his statement was omitted from my appeal, there for my appeal was turned down.  My question how can a master at arms be unreliable when he stills get promoted and still dose his job as a maa on board ship?  Note:  anytime a witness statement dose not support my guilt it is either label as unreliable, changed, or in the case of MS2 S_ it get completely ignored. Also my chain of command was not at my capts mast.  When I ask why my chief, LPO or my LCPO was not there the chief and the LPO was told not to be there by the divion officer and the LCPO was not told that I was going to mast like he ask the divion officer to do.

After my mast LNC R_ told me that he requested a general discharge for me, but the Capt said no that he want me to get an OTH.  I believed the following happen.
While waiting for my admin board I ask LNC R_ about how long it would take to get a admin board together, he said that he sent the names of who was pick for the board to the Capt for approval and it came back disapproved and he told me that the Capt pick the people that he wanted on my board.  I was told by navy legal office on Guam that an admin board was to be pick at random, but the Capt pick the board himself, I was also told that one member of my board was suppose to be from another command so as to be impartial this was not done everyone on my board was from my command.  I believed that because the Capt handpick my admin board the out come was predestined.
On June 04 a legal officer was assign to me (LT B_), when I met LT B_ for the first time he told me that he has never handle a case like this because he has only been a lawyer for only a few months, but that he would do his best.  We were hoping to be able to introduce a statement made by MA2 P_ about the incidence between PO C_ and SN G_, however we could not bring it up because the jag officer from the ship told her that she did not have to go to my admin board.  Again I was not allowed to face accuser. While getting ready for my admin board I was able to get 60 character references this list includes people that I have known for at lease 15 years it also includes retired military and people from my church. I am petitioning the review board in the belief that if I can get some one in authority to review all the evidence, REPEAT ALL EVIDENCE!  That you can in good conscious vindicate me of all the heinous charges.  I swear to you, as God is my judge that I did not commit these offences.  I am totally innocent of all of the charges.  Please took at my record from the last 16 years if you can find it because my command destroyed most of it except the part that I got, that I have served this country during peace and wartime.  Compare it to the records of my accusers. I have a copy of my admin board transcript for you to look at.  I had some questions about the transcript that I ask LN2 Q_.  1. How come there was no questions only answers?  2. How come the closing remarks were not typed?  3. Why are there some of the answers missing.  LN2 Q_ told me that the tapes that he was using was so old and that they were used so much that he could not under stand half of what was said on them. Although I whole heartily agree with our military's policy when it come to sexual harassment, I also believe that all efforts should be made to find out if the allegations were true or not I believed that this was not done in my case.  I believe I have submitted my reasons for believing this. I am also submitting to you numerous charter references, both military personnel and civilians, some of these people have known me for a short time, but some have known me for over 15 years.  The portrait that my accusers have painted of me is that of an uncontrolled animal, please compare this portrait with my charter references from people who have known me longer.
It is my fervent hope that you can clear me of all charges, reinstate me in to the navy at my former rank of E5, if not reclassify my discharge as honorable.  The United states government has spend a great deal of money on my training, too throw away all of this on the false allegations of a few misguided individuals would be a shame at this time when our country needs all of the trained personnel that it can get.

On July 20 2001 I had my admin board on board the USS Frank Cable AS-40 in Guam.  I was told that my board was suppose to be picked randomly, Capt. S_, my Commanding Officer, Personally chose all the officers that were to sit in on this board., rejecting all the other Officers that had already been chosen in the usual manner My Jag defense attorney told me that these Officers were supposed to be chosen from another command, so as to insure impartiality, All of the officers that sat on this Admin.  Board not only were hand picked by Capt. S_, but he didn't have even one from any other Command.  Because of these facts, as I know them, I feel that the hearing that was supposed to be impartial, was not.  It was also my right to have witnesses testify on my behalf My attorney and I had 18 of these witnesses ready and willing to do so, however the members of this Admin Board would only allow 7 of them testify and even refused to hear their full statements.  During these witnesses testimony the Officers of this Board seemed more interested in checking the time every few seconds by looking at their watches than in what was being said.  After this so called hearing the members took less then three minutes to read all their statements, make their decision, and then sign all the papers.  Also it looks like that prosecuting lawyer was running the board and the board just followed what he said.  Although I have the utmost respect for the attorney that was assigned to my case, I have to agree with his own assessment, in that being as he has only been in the Navy since September 2000, he may not been as knowledgeable as to the rules and regulation regarding the Naval law pirating to these types of procedures.  This may possibly had an effect on the outcome of this matter.

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his (Under Other Than Honorable Conditions) to a Honorable Discharge. The (FSM) entered the Navy Military Service on September 23, 1989 until August 01, 2001 period of over (11) years 10 months and 18 days of highly creditable service.  During this period the (FSM) served without any Non-Judicial Punishments except the current charge that he was separated from naval service for.
The (FSM) desire now to have his (Under Other Than Honorable Conditions Discharge up-graded to a General (Under Honorable Conditions Discharge or an Honorable Discharge from the US Naval Services. The (FSM) had a complete history of honored service to the naval services, he has received numerous recommendations stating his faithful and dedication to the naval services.  The (FSM) friends, fellow serviceman female and male alike came to the serviceman's aid some placing their promotions and career above your own to give recommendations and show support what they felt was a injustice to a Outstanding Sailor, who through no fault of his own, while performing his assigned duty was charged with a alleged charge of sexual harassment by (3) lower ranked trouble ranked female sailors.  The (FSM) respectfully request that some one or a panel of navy personnel review the evidence, especially the testimony of the alleged person who recanted her original testimony and confessed to conspire to in fact frame P.O. C_ in a wrongful sexual harassment act in which he was subsequently separated.
A matter of concern is that the Ship's Captain supported this action without reasonable cause, creditable evidence or testimony or proof.  This action can only be characterized as a failed attempt to have zero tolerance on ship, but again every incident should be judged on its own merit, not a rubber stamp investigation and merit ness conclusion and foundation.  A issue of great concern was P.O. R_ B_ testimony regarding the prior actions of the (3) females who originally cited the sexual harassment charges against P.O. C_ this testimony should have been used to form a basic for a subsequent investigation again on its own merit along with the (30) or so personal recommendations submitted by his shipmates and church community members in their loyal support. The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his (Under Other Than Honorable) Discharge to an General (Under Honorable conditions or a Honorable Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and the citing the reasons for his request to examine and review his past military history of obedient to the Naval Service Rules and policy and his subsequent dismissal for US Naval Services.  The (FSM) prior record should have some bearing on this case a good sailor should be respected for his term of honorable service and not just rubber stamped and separated, since he was placed in this position by his supervisor's request to perform and maintain this valuable service to his ship mates by maintaining the best Mess Desk- in his Fleet.  The (FSM) states at times he may become assertive, but he stated he would never do anything to discredit the naval service his family or himself by acting in such a negative matter, this statement is supported again by the numerous recommendations submitted by females who had worked with this sailor in close quarters for months and years without any subsequent abuse complaints, which could be. characterized as sexual harassment or any other problems, why should he act out in this way a small group of untoward female sailors persons who have a troubled past and may go to any means to establish what they feel is power any authority?  The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but was cited for negative actions that he would never perform and he never failed to show due respect to each and all his shipmates and other service personnel and other persons he meets, he further states he is a Godly man and doesn't hold any bad wishes or ill-feeling toward the navy.
We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes that was made that cited him with a act of negative behavior (sexual harassment)that the Navy stated he exhibited while his military duty in the United States Naval Services.

We ask for the Boards careful and sympathetic consideration of all the evidence of record Used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Documentation

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

Voluntary statement dated June 11, 2001
Applicant's DD Form 214
Letter from Member of Congress dated March 4, 2002
Letter to Congressman from Office of the Adjutant General dated February 12, 2002
List of character references from active military personnel
Character reference from MSCS (SS) dated June 4, 2001 (2 copies)
Character reference from SKC, undated
Character reference from SK1, undated
Character reference, undated
Character reference from SK1 dated June 4, 2001
Character reference from SK1 dated June 6, 2001
Character reference from SK1, undated
Character reference from STS1, undated
Character reference dated June 5, 2001
Character reference from MM1 dated June 5, 2001
Character reference from BM1(SW) dated June 5, 2001
Character reference from MS1, undated
Character reference from SK2 dated June 5, 2001
Character reference from PC2(SW) dated June 5, 2001
DD Form 149 dated February 16, 2002
Character reference from MS2, undated
Character reference from SK2, undated
Character reference from SK2 dated June 4, 2001
Character reference from MT2(SW) dated June 5, 2001
Character reference from QM2 dated June 14, 2001
Character reference from SK2(SW) dated June 5, 2001
Character reference from SK2 dated June 5, 2001
Character reference from SK2(SW) dated June 4, 2001
Character reference from SK3(SW) dated June 6, 2001
Character reference from SK3 dated June 5, 2001
Character reference from SK3 dated June 5, 2001
Character reference from SK3 dated July 1, 2002
Character reference from MS3, undated
Character reference dated May 16, 2001
Character reference from PN3, undated
Character reference from SK3 dated June 5, 2001
Character reference from SK3(SW) dated June 5, 2001
Character reference from SKSN dated June 5, 2001
Character reference from FN, undated
Character reference from SKSN dated June 5, 2001
Character reference from SKSN dated June 5, 2001
Character reference from SKSN dated June 4, 2001
Character reference, undated
List of character references from retired military personel
Character reference from LCDR dated June 14, 2001
Character reference from CPO dated June 9, 2001
Character reference from CPO dated June 5, 2001
Character reference from USAF dated June 7, 2001
List of character references from civilian personnel
Character reference from Head Deacon dated July 1, 2001
Character reference from Department of Public Works dated June 10, 2001
Character reference dated June 13, 2001
Character reference from Applicant's parents dated June 5, 2001
Character reference dated June 4, 2001
Character reference dated June 4, 2001
Character reference June 11, 2001
Character reference June 1, 2001
Character reference June 5, 2001
Character reference, undated (4 pages)
Character reference, undated
Character reference dated June 10, 2001
Character reference dated June 1, 2001
Character reference dated June 7, 2001
Character reference dated June 7, 2001
Character reference from Applicant's wife, undated
Character reference, undated
Character reference dated June 10, 2001
Ten pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	850917 - 850924	COG
	Active:   USN 			850925 - 890921	HON
		   USN			890922 - 950615	HON

Period of Service Under Review:

Date of Enlistment:  950616		Date of Discharge:  010810

Length of Service (years, months, days):

	Active:    05  01  25
	Inactive:  None

Age at Entry:  29			Years Contracted:  6

Education Level:  12			AFQT:  49

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.22 (9)	Behavior:  2.44 (9)		OTA:  3.11

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), NMCOSR (4), HSM, NAM, NER (3), GCM (4), AFEM, MUC (2), SASM

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:

010601:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 134 (6 specs): Indecent assault.
	Award: Forfeiture of $827 per month for 2 months, restriction and extra duty for 45 days, reduction to SK3.  No indication of appeal in the record.

010601:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010607:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010720:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010727:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010730:	Commander, U.S. Naval Forces, Marianas 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 010810 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).

Issues 1 and 2.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for the commission of a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The positive aspects of the Applicant’s record do not mitigate his misconduct to the degree necessary to warrant an upgrade to his discharge.  The preponderance of the documentation provided by the Applicant was considered and the Board found that it did not directly refute the charges against the Applicant that led to his non-judicial punishment or the findings of his administrative discharge board.  The possibility that one of his accusers may have fabricated charges against the Applicant does not invalidate the preponderance of evidence that the Applicant committed the offenses with which he was charged.  While he may feel that his Commanding Officer was prejudiced against him, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Board found no impropriety in the fact that the Applicant received non-judicial punishment instead of a requested court-martial.  The Board found no impropriety or inequity in the appointment, conduct, and findings of his administrative discharge board.  Relief denied.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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 "afls14.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:  A6750/A9219/A9401/A9217/A9223/A9221