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Docket No. ND03-00873

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

 ex-SR, USNR
Docket No. ND03-00873

Applicant’s Request

The application for discharge review was received on 20030424.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to unknown/I don’t know uncharacterized disclosed.  The Applicant requests 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 20040401.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Adultery: I did not know the man was married.”

2)  I always told the truth.  I basically told on myself.

3)  Disobeying an order:  I was scared the man almost raped me.  He was in charge of me.  I looked up to him as a senior person and did what I was told.

4)  I was not in the military long.  The senior people were not good examples.  At the time I had forgotten what I had learned in bootcamp (the rules) and did what I seen a lot of others doing.  I really didn’t think I did anything wrong because I would not have told on myself.  I married a military man after my discharge from the military so I stayed around the environment.  I love the United States and would die for her.  Over the years I have grown up a lot and would like a second chance to serve my country.  I want to become a police officer.  When I was in the military I let others influence me.  Maybe it was because of my age or maybe I didn’t understand about order.  Now I understand the importance of the military’s laws & regulations.  Life's could be at stake if not followed.  I would like a second chance to make a difference.

5)  L_ M_ never got charged with adultery but I did.”

Documentation

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

Character/job reference, dated January 21, 1997
Character/job reference, dated October 25, 1996

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940408		Date of Discharge:  950707

Length of Service (years, months, days):

	Active:    01  02  17
	Inactive:  00  00  12

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  51

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630600.

Chronological Listing of Significant Service Events:

940421:	Applicant to active duty.

941128:	Counseling: Advised of deficiency (Military bearing and the events of the previous weekend, and proper respect to Chief Petty Officers and Officers.), notified of corrective actions and assistance available.

941207:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate a lawful general order on or about October 1994, to wit: wrongfully engaging in sexual intercourse with Ensign N_, a naval officer.
Specification 2: Violate a lawful general order on 941029, to wit: wrongfully engaging in relationships of undue familiarity with Chief Radioman E_ and Chief Gunner’s Mate H), chief petty officers.
Violation of UCMJ, Article 134 (3 specs):
Specification 1: Wrongfully have sexual intercourse with Gunner’s Mate Guns Third Class M_, a married man not her husband on August 1994.
Specification 2: Wrongfully have sexual intercourse with Ensign N_, a married man not her husband on or about October 1994.
Specification 3: Wrongfully have sexual intercourse with Boatswain’s Mate Third Class L_, a married man not her husband between 940811 to October 1994.
	Date of Offense: October 1994, 941029, August 1994, 940811.
	Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

950113:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92 (2 specs):
	Specification 1: Failure to obey lawful order by being out of uniform during normal working hours on 941222.
	Specification 2: Wrongfully watching television during normal working hours on 941222.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Restriction for 10 days.
	CA action 950127:  Sentence approved and ordered executed.

950420:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950420:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950428:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the Applicant did not have a personality disorder 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.

950518:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Disobeyed a lawful order to remove the numerous earrings and band-aids covering them from her ears while in uniform, (2) Fail to obey a lawful general regulation, by wrongfully wearing more than one earring, while in uniform.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days.  Forfeiture suspended for 3 months.  No indication of appeal in the record.

950526:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and personality disorder.

950601:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 950530, fail to go at the time prescribed to her appointed place of duty, 1230 Maintenance Team Muster at TPU, Bldg 1752.
	Award: Restriction for 10 days.  No indication of appeal in the record.

950602:	Vacate suspended forfeiture of $200.00 for 2 months awarded at CO’s NJP dated 950518 due to continued misconduct.

950629:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from DD Form 214, Block 25.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950707 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, 2, and 3.  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 three occasions, one summary court-martial, adverse counseling entries on other occasions, and performance and conduct markings well below the minimum acceptable levels.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects her 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.  An upgrade to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Issue 4.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  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.  

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to her discharge 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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, 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 "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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