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Docket No. ND03-01141

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

ex-QM3, USN
Docket No. ND03-01141

Applicant’s Request

The application for discharge review was received on 20030618.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “- Request reinstatement into the United States Navy at pay-grade of E-6/PO1.  I feel that I was wrongfully and unjustifiably discharged.  Please refer to statement attached to DD-Form 149.

Very Respectfully,
Mr. J_ W_ (Applicant)”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on October 2, 2003 and the following comments are hereby submitted:

This was an outstanding Sailor, a loving husband and father whom had dedicated most of His time helping other shipmates both male and female.  He was accused of sexual misconduct by individuals that was known for stretching the boundaries of credibility.  He was unjustly discharge from the Navy on unsubstantial allegations.  In addition with All the letters of testament to his good character create even more doubt about his accusers Motives.  We agree with the Applicant that the allegations against him was based on Inconsitencies collusion.  There was no eyewitness to any of the claims.  We fully Concur with his contentions that his discharge be upgraded and he be reinstated in to the Navy with the Pay Grade of E-6.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable Discharge.”

Documentation

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

Applicant’s DD Form 214
DD Form 149
Statement from Applicant, dated December 15, 2002
Letter from BM2 J_, dated December 20, 2002
Investigating Officer’s report from Article 32 (18 pages)
Defense counsel arguments of Article 32 (3 pages)
Appeal for nonjudicial punishment with attachments, dated April 22, 2002 (16 pages)
Administrative board summary (10 pages)
Letter of deficiency to the administrative board from civilian counsel (5 pages)
Noted discrepancies in summary of report from admin board, dated September 10, 2002 (4 pages)
Military evaluation from 1989 to 2002 (48 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890227 - 890723	COG
	Active:   USN 			890724 - 930722	HON
		   USN			930723 - 970626	HON
		   USN			970627 - 990701	HON

Period of Service Under Review:

Date of Enlistment:  990702		Date of Discharge:  021022

Length of Service (years, months, days):

	Active:    03  03  21
	Inactive:  None

Age at Entry:  28			Years Contracted:  2 (16 months extension)

Education Level:  12			AFQT:  35

Highest Rate:  QM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  3.40 (5)		OTA:  3.71

Military Decorations:  None

Unit/Campaign/Service Awards:  NER (3), SSDR (5), NUC, SASM (2), GCM (2), NDSM (2), AFEM, ESWB

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:

020415:	NJP for violation of UCMJ, Article 134 (5 specs): Sexual harassment.
	Award: Forfeiture of $876.15 per month for 2 months, restriction and extra duty for 45 days, reduction to QM3.  No indication of appeal in the record.

020418:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020506:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020606:	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.

020816:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021010:	COMCRUDESGRU THREE 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 20021022 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:  The Applicant states his character is demonstrated by his outstanding and documented evaluations and quick promotion to Petty Officer Third Class.  The Board determined that the Applicant’s previous performance does not mitigate the misconduct that was the basis for his discharge.  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) for the commission of serious offenses.  While he may feel that he was unjustly discharged on unsubstantial allegations, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Furthermore, there is no evidence to support the Applicant’s claim of injustice, in the award of the discharge.  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 sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.   

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 his 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), re-issued October 2002, effective 22 Aug 02 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.
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