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NAVY | DRB | 1999_Navy | ND99-00510
Original file (ND99-00510.rtf) Auto-classification: Denied


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

ex-EWC, USN
Docket No. ND99-00510

Applicant’s Request
The application for discharge review, received 990228, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104. 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 1910-144 (formerly 3630610).

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 89AUG 11 UNTIL 97MAR05", Block 25, Separation Authority, should read: “Article 1910-144 (formerly 3630610)” vice “3630605" and Block 26, Separation Code, should read: "GKB" vice "GKL". The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My "Other Than Honorable" discharge was inequitable, because it was based on an isolated incident in an 18-year period of otherwise meritorious and faithful service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 for period 89AUG11 - 98APR24
Copy of DD Form 214 for period 84MAY17 - 89AUG10
Copy of DD Form 215 for 89AUG10 separation date
Copy of DD Form 214 for period 80MAR05 - 84MAY16
Copy of DD Form 214 for 84MAY16 separation date
Applicant's letter to the Board of Feb 15, 1999 (Statement to Issue #1)
2 Statements of Character Concerning Applicant (contained in official service record)
Character Reference letter of Feb 2, 1998\par
23 Performance Evaluations (contained in official service record)
6 Enlisted Performance Record (NAVPERS 1070/609) (contained in service record)
2 Awards Page (NAVPERS 1070/604) (contained in official service record)
13 Awards/Certificates (contained in official service record)
22 other service record pages (contained in official service record)
9 pages of discharge package (contained in official service record)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               950309 - 970305  HON
                                             890811 - 950308  HON
                                             840517 - 890810  HON
                                             800305 - 840516  HON
         Inactive: USNR (DEP)     800201 - 800304  COG

 Period of Service Under Review :
Date of Enlistment: 970306               Date of Discharge: 980424

 Length of Service (years, months, days):

         Active: 01 01 19
         Inactive: None

 Age at Entry: 37                          Years Contracted: 3

 Education Level: 12                        AFQT: 55

 Highest Rate: EWC (E-7)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 5.0 (1)     Behavior: 4.0 (1)                 OTA: 4.0 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NMCCM, NMCAM, GCM(4), NER, AFEM(2), AFSM(2), NM(2) SSDR(4), NDSM, EPSM, NAM

 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 1910-144 (formerly 3630610).





 Chronological Listing of Significant Service Events :

971210:  Civil Conviction: Circuit Court, Virginia Beach VA for (1) Aggravated sexual battery and (2) Aggravated sexual battery.
         Plea: Count (1) and (2) - Guilty
         Findings: Count (1) and 92) - Guilty
 Sentence: Five years in the Virginia State Prison on each offense to run consecutively for a total of 10 years, suspended, conditioned on 1 - Ten years good behavior. 2 - Psychiatric counseling with quarterly reports to the commonwealth attorney beginning January 1, 1998. 3 - Payment of the victim's counseling. 4 - No contact with the victim. 5 - Payment of court costs.
Fined: $138.00 court costs.
971222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by conviction on 10 December 1997 of two counts of aggravated sexual battery in the circuit court, Virginia Beach, Virginia and by reason of misconduct due to civil conviction.

971223:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Additionally, applicant indicated that he did not intend to file an appeal on the civil conviction.
980204:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to a civil conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980310:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by conviction on 10 Dec 97 of two counts of aggravated sexual battery and by reason of misconduct due to civil conviction. Commanding officer’s comments (verbatim): "I concur with the findings and recommendation of the Administrative Discharge Board."

980311:  CNET directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980424 under other than honorable conditions for misconduct due to civil conviction (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).

 The applicant’s issue states that the discharge was inequitable because it was based on an isolated incident in an 18-year period of otherwise meritorious and faithful service. The NDRB found that the applicant’s conviction in civil court of two counts of aggravated sexual battery and his plea of guilty to both charges sufficient to warrant an other than honorable discharge. In reviewing the applicant’s service, the NDRB can not overlook the significant misconduct committed by the applicant. The NDRB found the applicant’s equity issue without merit. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 31 Aug 98, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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