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

FOR OFFICIAL USE ONLY

ex-CS1, USN
Docket No. ND06-00343

Applicant’s Request

The application for discharge review was received on 20051227.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “change of separation code/RE-Code.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130.  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 characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I had prior to my NJP Demonstrated and conducted my in accordance with the rules and regulations for 16 yrs 8 mo. up until this point of my career, I had never been before a NJP.  I was wrongfully punishzed for my accused offenses.  Enclosed is a letter of defiecancies
Evidence and tetzmony was proveded before an Admin Board and I was found not guilty by a vote of 3 to 0 to the charges of stalking which was presented as a commission of a serzous offense and it was still included as the reason for my approved separation.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I wish to return to active duty and complete my remaining 3 yrs of service.  I was allowed to transfer and relocate under the impression by parent command that the Recommendations of the Admin Board would uphold.  However, 3 months aboard my New command I was presented with a discharge.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Five pages from Applicant’s service record
Letter from Applicant to W_ A. N_, Jr., Assistant Secretary of the Navy (M&RA), dtd February 22, 2005
Statement from the Applicant, dtd February 9, 2005
Letter to W_ H. F_, United States Senator, dtd April 1, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19880224 - 19880619	COG
	Active:   USN	19880620 - 19920423	HON
		USN	19920424 - 19950706	HON
		USN	19950707 - 20021024	HON

Period of Service Under Review:

Date of Enlistment:  20021025		Date of Discharge:  20050318

Length of Service (years, months, days):

	Active:    02  04  24
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  32

Years Contracted:  5

Education Level:  12				AFQT:  32

Highest Rate:  CS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.5 (2)			Behavior:  2.5 (2)		OTA:  3.14

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Medal(3); Navy Unit Commendation; Armed Forces Expeditionary Medal(2); Sea Service Deployment Ribbon(5); South West Asia Service Medal; Armed Forces Service Medal; NATO Medal; Kuwait Liberation Medal(Kuwait); National Defense Service Medal(2); Navy&Marine Corp Achievement Medal (2); Enlisted Surface Warfare Specialist

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

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

Chronological Listing of Significant Service Events: 

021025:	Reenlisted this date for a term of 5 years.

040415:	NJP for violation of UCMJ, Article 134 (Stalking).
	Specification: In that Culinary Specialist First Class S_ P_(Applicant), U.S. Navy, USS RUSHMORE, located at Pier 12, Naval Station San Diego, CA, on active duty, did, on or about 040405, stalk CSSN L_ L_ by wrongfully following her home without her consent in violation of California Penal Code 646.9, as assimilated into Federal law by the provisions of the Federal Assimilative Crimes Act, 18 U.S.C. § 13.
Violation of UCMJ, Article 92 (Failure to obey a lawful general order - sexual harassment)
Specification 1: In that Culinary Specialist First Class S_ P_. U.S. Navy, USS RUSHMORE (LSD 47), San Diego, California on active, did at the galley and mess decks onboard USS RUSHMORE, located at San Diego, California on diverse occasions from 05 April 04 until 06 April 2004, violate a lawful general order, to wit: SECNAVINST 5300 26C, Paragraph 8(a) (1), by committing sexual harassment as defined in SECNAVINST 5300 26C, Enclosure (1), Paragraph 4(c) to wit: that the accused did create an intimidating, hostile or offensive working environment in the galley and mess decks located onboard USS RUSHMORE, San Diego, California by wrongfully; on diverse occasions, smacking hand on behind, staring, 1icking lips and making “MMMM” sound, making sexually offensive comments to Culinary Specialist Seaman L_ M_ L_, U.S. Navy, thus causing Culinary Specialist Seaman L_ M. L_, U.S. Navy, to perceive the work environment  as being hostile or offensive and, that, a reasonable person would have perceived the same environment as being hostile or offensive.
Specification.2: In that Culinary Specialist First Class S_ P_, U.S. Navy, USS RUSHMORE (LSD 47), San Diego, California, on active, did at the galley and mess decks onboard USS RUSHMORE, located at San Diego, California on diverse occasions from April 2003 until April 2004, violate a lawful general order, to wit: SECNAVINST 5300.26C, Paragraph 8(a) (1), by committing sexual harassment as defined in SECNAVINST 5300.26C, Enclosure (1), Paragraph.4(c) to wit: that the accused did create an intimidating, hostile or offensive working environment in the galley and mess decks located onboard USS RUSHMORE, San Diego, California, by wrongful on diverse occasions, attempting to kiss, staring, licking lips and making “MMMM” sound, making sexua1ly offensive comments to Culinary Specialist Seaman J_ N. A_, U.S. Navy, thus causing Culinary Specialist Seaman J_ N. A_, U.S. Navy, to perceive the work environment as being hostile or offensive and, that, a reasonable person would have perceived the same environment as being hostile or offensive.
Specification 3: In that Culinary Specialist First Class S_ P_, U.S. Navy, USS RUSHMORE (LSD 47), San Diego, California, on active, did at the galley and mess decks onboard USS RUSHMORE, located at San Diego, California on diverse occasions from March 2004 until April 2004, violate a lawful general order, to wit: SECNAVINST 5300.26C, Paragraph 8(a) (1), by committing sexual harassment as defined in SECNAVINST 5300.26C, Enclosure (1), Paragraph 4(c) to wit: that the accused did create an intimidating, hostile or offensive working environment in the galley and mess decks located onboard USS RUSHMORE, San Diego, California, by wrongfully on diverse occasions, making sexually offensive comments to Seaman T_ M. O_, U.S. Navy, thus causing Seaman T_ M. O_, U.S. Navy, to perceive the work environment as being hostile or offensive and, that, a reasonable person would have perceived the same environment as being hostile or offensive.
Specification 4: In that Culinary Specialist First Class S_ P_, U.S. Navy, USS RUSHMORE (LSD 47), San Diego, California, on active, did at the galley and mess decks onboard USS RUSHMORE located at San Diego, California  on August 2003, violate a lawful general order, to wit: SECNAVINST 5300.26C, Paragraph 8(a) (1), by committing sexual harassment as defined in SECNAVINST 5300.26C, Enclosure (1), Paragraph 4(c) to wit: that the accused did create an intimidating, hostile or offensive working environment in the galley and mess decks located onboard USS RUSHMORE, San Diego, California, by. wrongfully: making sexually offensive comments to Seaman E_ S_, U.S. Navy, thus causing Seaman E_ S_, U.S. Navy, to perceive the work environment as being hostile or offensive and, that, a reasonable person wou1d have perceived the same environment as being hostile or offensive.
Specification 5: In that Culinary Specialist First Class S_ P_, U.S. Navy, USS RUSHMORE (LSD 47), San Diego, California, on active, did  at the galley and mess deck onboard USS RUSHMORE, located at San Diego, California on diverse occasions from August 2003 until April 2004, violate a lawful general order, to wit: SECNAVINST 5300.26C, Paragraph 8(a) (1), by committing sexual harassment as defined in SECNAVINST 5300.26C, Enclosure (1), Paragraph 4(c) to wit: that the accused did create an intimidating, hostile or offensive working environment in the galley and mess decks located onboard USS RUSHMORE, San Diego California by wrongfully on diverse occasions, staring, licking lips and making “MMMM’ sound to Culinary Specialist Third Class S_ M. S_, U.S. Navy, thus causing Culinary Specialist Third Class S_ M. S_, U.S. Navy, to perceive the work environment as being hostile or offensive and, that., a reasonable person would have perceived the same environment as being hostile or offensive.
	Award:  Restriction for 60 days, reduction to E-5.  Process from Navy via admin separation for these offenses and FAP failure.  No indication of appeal in the record.

040810:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to the commission of a serious offense -                     

040810:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040830:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed stalking and had committed failure to obey a lawful order, and by a vote of 2 to 1 recommended retention.  Dissenting member recommends suspended separation for 6 months.  Recorder:  Two dates convened 040826 and reconvened 040830 and voted and letter of deficiencies has 040830 and reflects the vote information found on hand written version in paragraph 2.  Typed version of vote - both shows does not support, however the handwritten version of vote - shows does not support to Article 134 and does to Article 92.  Typed version does not reflect suspended separation for 6 months.  

040910:	Letter of Applicant deficiencies submitted from Applicant counsel.

040916:	Commanding Officer, USS RUSHMORE (LSD 47), recommended discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense and Family Advocacy Program Failure.  Commanding Officer’s comments:  “Two separate Administrative Boards were held for Petty Officer P_(Applicant).  The first board was for Family Advocacy Program failure.  The second was for Commission of a serious offense.  Two separate boards were conducted because his attorney filed an NJP appeal a few days before his board was scheduled.  Our command decided to proceed with the FAP administrative board while his appea1 was being processed.
	Petty Officer P_’s sexual harassment of several women within his division onboard RUSHMORE cannot be tolerated.  He abused his supervisory position and his misconduct created a hostile work environment occurring over a significant period of time.  Furthermore, his Family Advocacy Program failure for spousal abuse also indicates behavior incompatible with the Navy’s core values.
	Statements regarding the veracity of CSSN L_’s testimony on the stalking charge were treated seriously.  She was re-interviewed by the Command Master-at-Arms and by myself and in both instances she affirmed that her previous statement was true.  I do not understand her reluctance to present testimony before the board but believe that visitation of a very junior subordinate at her residence for no official purpose is at the very least fraternization.
	An excuse of ignorance regarding the harmful nature of his actions by Petty Officer P_ is disingenuous at best.  Petty Officer P_ received annual sexual harassment training as do all Sailors and was aware of my adamant enforcement of those standards.  To be a Petty Officer of his seniority and length of service and deny knowing his actions were inexcusable is incomprehensible.
	Petty Officer P_’s Family Advocacy Program Failure for spousal abuse is indicative of behavior incompatible with the Navy s core values.  Although this administrative board did not find him guilty of misconduct, Petty Officer P_ has four substantiated cases of spousal abuse.  Counseling and treatment have been unsuccessful in stemming this history of Spouse abuse as his latest case of abuse occurred while Petty Officer P_ was enrolled in a court-ordered 52-week treatment program.  Petty Officer P_ has been provided ample opportunity and time to change his abusive behavior and has failed to do so.  This chronic history of spousal abuse negatively outweighs his contribution to the Naval Service, regardless of his service.  While his official work has generally been commendable, his private actions cannot be condoned or overlooked as they bring discredit upon the Navy.  Though the Administrative Board recommended retention, there is no doubt that Petty Officer P_ has four separate substantiated cases of spousal abuse and that the member has failed rehabilitation.
	Petty Officer P_ has appeared twice before Administrative Boards in as many months because of his discreditable conduct in unrelated areas: once for four substantiated cases of spousal abuse resulting in an assessment of Family Advocacy Program failure and once for creating a hostile work environment.  In both cases Petty Officer P_’s length of service appears to be the primary reason for recommendation of retention.  Yet based on the seriousness of each case I do not believe this is the type of Sailor the Navy should retain.  He has abused personal, organizational and public trust by his actions with his family and subordinates, and I feel he is likely to do so again.
	I most strongly recommend the CS2 P_ be separated from the Naval Service by reason of misconduct due commission of a serious offense and Family Advocacy Program failure, and that his characterization of service be “Other than Honorable”.”

041208:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

041220:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

041228:	CNPC, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050318 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

The Applicant states “I had prior to my NJP Demonstrated and conducted my in accordance with the rules and regulations for 16 yrs 8 mo. Up until this point of my career, I had never been before a NJP.  I was wrongfully punishzed for my accused offenses.”  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one nonjudicial punishment proceedings for violations of Articles 92 (Failure to obey a lawful general order – sexual harassment) and 134 (Stalking) of the UCMJ.  For the edification of the Applicant, the Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Articles 92 and 134.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicants wish is to return to active duty and complete his remaining 3 years of service.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 additional evidence related to this 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 (formerly 3630605), SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Articles 92 (Failure to obey a lawful general order – sexual harassment) and 134 (Stalking).  

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023