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

Docket No. ND02-01319

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

 ex-OSSN, USN
Docket No. ND02-01319

Applicant’s Request

The application for discharge review, received 020918, requested that the characterization of service on the discharge be changed to honorable.  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 030722.  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, as submitted

1.  My discharge was inequitable because it was based on one isolated incidents in 24 months of service.  This one isolated incident should not determine my future.  When released from the military I receive an Other Than Honorable discharge.  That discharge is with holding me from achieving certain goals in my life, career, and future.  After two years of being out of the military I have accomplish a great amount of achievements.  Now that these achievements have been accomplished I'm now out in the work force looking for employment.  Due to my Other Than Honorable discharge I am unable to qualify for jobs that I have had tremendous training in.  This discharge is making all those achievements in vain. Now since I have been out of the military for two plus years I have gain the knowledge of knowing how important it is to obtain a good record, not only for my career, but for my future.  It is important, because if you do not have a good record, no matter how qualified you are for a job, you will not get that job.  Having my discharge upgraded to Honorable will help me to complete the goals in life that I have set forth for myself, and help me to achieve much more than I have achieved.  It will also help me to become more qualified for jobs that I am capable of doing, I have also come to realize that when on the job there are certain ways you will need to carry yourself.  Harassment of any kind including sexual harassment in the work place will not be tolerated not only by the military but it will also not be tolerated by the public. In closing I do hope and pray that the Board will consider upgrading my discharge from Other Than Honorable to an Honorable discharge.  If there are any questions or comments please feel free to contact me via mail. Thank you for your time and consideration.
Yours Truly,

Documentation

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

Applicant's DD Form 214 (Member 1 and 4 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961016 - 970902	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970903		Date of Discharge:  000120

Length of Service (years, months, days):

	Active:    02  04  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.43

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

971110:	Retention Warning:  Advised of deficiency (Failure to disclose a traffic violation: failure to yield right-of-way, August 1997, Lake City, FL, paid $78.00.  No further legal action pending.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
990711:	NJP for violation of UCMJ, Article 80 (3 specs): (1) Attempted assault on OSSN in March or April 1999, to wit: attempt to touch the crotch area, (2) Attempted assault on OSSA in April 1999, to wit: attempt to touch the crotch area, (3) Attempted assault on OS3, on diverse occasions, violation of UCMJ, Article 92 (4 specs): (1) Disobeying a lawful general order, to wit: SECNAVINST 5300.26B, to wit: sexual harassment, (2) Violate a lawful general order, to wit: SECNAVINST 5300.26B, by making sexually suggestive comments towards OS2, to wit: "I want to see you naked,", (3) Violate a lawful general order, to wit: SECNAVINST 5300.26B, by making sexually suggestive comments toward OSSN, to wit: "Don't fall into a deep sleep tonight because you never know what I might do to you, (4) Violate a lawful general order, to wit: SECNAVINST 5300.26B, by making sexually suggestive comments toward OS2, to wit: "You have a big penis and you look good", violation of UCMJ, Article 128: Assault OS3 by grabbing his crotch.
	Award: Forfeiture of $558 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  No indication of appeal in the record.

990902:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexual conduct and misconduct due to the commission of a serious offense.

990902:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991102:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and homosexual conduct, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

991208:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.

000112:	CNPC 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 000120 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).

Issue 1:  The Applicant states his discharge was based on one isolated incident in “24 months of service.”  Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military, in order to maintain proper order and discipline, does not view such offenses as minor infractions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for assault and sexual harassment, thus substantiating the misconduct for which he was separated.  Repeated sexual harassment and homosexual conduct warranted processing for separation, normally under other than honorable conditions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied.

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 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 "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.
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