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

ex-AZ2, USN
Docket No. ND04-00692

Applicant’s Request

The application for discharge review was received on 20040324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041103.  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: MILPERSMAN, Article 1910-142.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read:  “02 00 26” vice “14 01 23,” and Block 12d, Total Prior Active Service, should read:  “14 10 20” vice “02 09 23,” and Block 18, Remarks, should contain the following statement:  "CONTINUOUS HONORABLE ACTIVE DUTY FROM 890921 UNTIL 011018," and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS” vice “UNDER OTHER THAN HONORABLE.”  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My command had an admin board because I was arrested for lewd or lascivious molestation.  The charge was falsely accused.  The state attorney’s office drop all charges on 2002Jul22.  16 months later the command decided to have an admin board in reguards to this matter.  DD 214 Blk’s 24, 27 and 28 is hindering me from getting a decent job to support me and my family.  I feel this admin board was unfair and unjust to me, especially after I gave 17 years of my life to the Navy and never had NJP.  I believe in fair and just treatment but Blk’s 24, 27 and 28 are not.  I am innocent of the charges and I feel the Admin Board was a formality for a determined outcome in reguard to what really didn’t take place (admin board was biased) (I knew 2 of member’s and we didn’t get along)”

Documentation

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

Court paper from Circuit Court of Duval County, Florida, dated August 6, 2002
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860815 - 861125	COG
	Active:   USNR		861126 - 890920	HON
		   USN			890921 - 960720	HON
		   USN			960721 - 980624	HON
		   USN			980625 - 011018	HON

Period of Service Under Review:

Date of Enlistment:  011018		Date of Discharge:  031114

Length of Service (years, months, days):

	Active:    02  00  26
	Inactive:  None

Age at Entry:  34			Years Contracted:  5

Education Level:  12			AFQT:  47

Highest Rate:  AZ2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  2.33 (3)		OTA:  3.18

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, GCM (4), NATO, AFSM, SSDR (5), NER (3), NDSM (2), SASM with Bronze Star, HSM, FLOC, KLM (K), N&MCAM, MUC, EAWSBI, ESWSBI

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

020307:	Applicant arrested and charged with sexual battery (Capital felony; suspect over 18, victim under 12) from 010701 to 011201.  Applicant’s interview with the police:  On 020307, I interviewed the suspect.  Prior to interviewing him I advised the suspect of his constitutional rights.  The suspect signed the rights form.  Detective R_ #7527 and Sgt E_ #7305 witnessed the Miranda warnings.  The suspect agreed to speak to me about the allegations, the suspect stated that he was at the poolhall with the victim and followed her outside.  He said that they went to the back of the building, at which time he pulled his penis out of his pants and urinated on a tree.  He stated that the victim walked over to him and looked at his penis.  The suspect then put “the tip of his dick in her mouth.”  The suspect told the victim, “This isn’t right, you need to go away.”  The victim left, at which time the suspect masturbated and ejaculated on the ground.  The suspect agreed to give a written statement.  The suspect was arrested and walked over to PTDF.  It should be noted that the suspect is also under investigation for sexually assaulting this victim’s 14 year-old sister.  Further charges are pending.

020308:	Applicant arrested and charged with lewd/lascivious molestation - offender 18 or older, victim 12 or older but less than 16 years old from 0800-1500, 020227.  Applicant’s interview with police:  On 020307, the suspect was interviewed at the Police Memorial Building. Prior to the interview, the suspect was advised of his constitutional rights and signed the rights form.  The suspect stated that this victim has “rubbed” his penis with her hand over his clothing on at least two occasions.  He said that she has not masturbated him and each time she touched his penis, it was her idea.  The victim’s 11 year-old sister was also sexually assaulted by this suspect and was arrested for capital sexual battery on 020307.  This is an add-on charge.

030603:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

030603:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030911:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, specifically that Applicant made and signed a statement acknowledging he did the acts listed in police reports, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

031031:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

031110:	Commander, Navy Region Southeast directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense specifically that Applicant made and signed a statement acknowledging he did the acts listed in police reports.  [Such as sexual perversion, lewd and lascivious acts, sodomy, assault on a child, indecent exposure, indecent acts, etc].

031114:	Applicant refused to turn in medical records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031114 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 elected to appear before an Administrative Discharge Board.  Administrative separation by reason of a commission of a serious offense does not require prior adjudication of the offenses by non judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence.  The Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, specifically that Applicant made and signed a statement acknowledging he did the acts listed in police reports.  The Applicant’s claim of innocence lacks sufficient documentation and evidence necessary to refute the presumption of regularity in this case.  There is credible evidence in the record that the Applicant was properly discharged due to the commission of a serious offense, specifically that Applicant made and signed a statement acknowledging he did the acts (sexual perversion, lewd and lascivious acts, sodomy, assault on a child, indecent exposure and indecent acts) listed in police reports.  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 verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 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