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NAVY | DRB | 1999_Navy | ND99-00686
Original file (ND99-00686.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND99-00686

Applicant’s Request
The application for discharge review, received 990427, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.









PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The “Reason” for this discharge was allegedly sexual harassment. However, I was never formally charged, nor was I provided an opportunity to present my case to a courts martial or at an Article 15 hearing.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     900519 - 910213  COG

 Period of Service Under Review :
Date of Enlistment: 910214               Date of Discharge: 960906

 Length of Service (years, months, days):

         Active: 05 06 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (20 months extension)

 Education Level: 12                        AFQT: 52

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.72 (5)    Behavior: 3.80 (4)                OTA: 3.76

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, MUC (2), NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

960718:  Charges preferred to special court-martial against the applicant for violation of the Uniform Code of Military Justice (UCMJ).
 Charge I: Violation of UCMJ, Article 92, Disobeying a Lawful order (4 specifications). Specification 1: In that HN D_ L. E_, US Navy, Naval Hospital Pensacola, on active duty, did, at the Naval Hospital Pensacola, Florida, on or about 02 January 1996 to on or about 12 January 1996, fail to obey a lawful general order, to wit: SECNAV Instruction 5300.26B, dated 6 January 1993 by wrongfully committing sexual harassment against HA T_ M. D_, by making unwelcome verbal comments of a sexual nature which created an offensive working environment by stating to her she did not have to go to the bathroom to change but could change in his presence or words to that effect. Specification 2: In that HN D_ L. E_, did, at the Naval Hospital Pensacola, Florida, during the period of 02 January through 12 January 1996, fail to obey a lawful general order, to wit: SECNAV Instruction 5300.26B, dated 6 January 1993 by wrongfully committing sexual harassment against HA T_ M. D_, by repeatedly brushing up against her or bumping into her which created an offensive working environment. Specification 3: In that HN D_ L. E_, did, at the Naval Hospital Pensacola, Florida, during the period of 01 April 1996 through 30 April 1996, fail to obey a lawful general order, to wit: SECNAV Instruction 5300.26B, dated 6 January 1993 by wrongfully committing sexual harassment against HA S_ L. T_, by repeatedly taking her arm or putting his arm around her neck which created an offensive working environment. Specification 4: In that HN D_ L. E_, did, at the Naval Hospital Pensacola, Florida, during the period of 29 April 1996 through 10 May 1996, fail to obey a lawful general order, to wit: SECNAV Instruction 5300.26B, dated 6 January 1993 by wrongfully committing sexual harassment against K_ G. B_, by repeatedly making unwelcome verbal comments which created an offensive working environment by stating to K_ B_ “Ooh baby, you look so fine” and “I bet your husband is really enjoying you now” or words to that effect, and by touching her hair.
Charge II: Violation of UCMJ, Article 134, Indecent Assault 3 Specifications). Specification 1: In that HN D_ L. E_, US Navy, Naval Hospital Pensacola, Florida, on active duty, did at the Naval Hospital Pensacola, Florida, on or about 05 May 1995, commit an indecent assault upon T_ A. B_, a person not his wife, by placing his hands on her and kissing the right side of her neck, with intent to gratify his lust or sexual desires. Specification 2: In that HN D- L. E_ did, at the Naval Hospital Pensacola, Florida , on or about 19 December 1995, commit an indecent assault upon T_ M. C_, a person not his wife, by grabbing her and placing his hands on her back and sliding them towards her buttocks, with the intent to gratify his lust of sexual desires. Specification 3: In that HN D_ L. E_ did, at the Naval Hospital Pensacola, Florida, on or about April 1995, commit an indecent assault upon K_ R. G_ a person not his wife, by sliding his hands up and down her leg, with the intent to gratify his lust or sexual desires.”
960812:  Medical Examination: Report of medical examiner (verbatim). “The servicemember has been examined this date as required by reference (a) (MILPERSMAN 3630650). There is no reasonable cause to question whether this member could adhere to the law at the time of the alleged offense and is capable of understanding the nature of the proceedings against him. It is, therefore, the opinion of the examiner that an examination by a psychiatrist is not warranted as part of the evaluation processing.”

960822:  A pplicant requested an administrative discharge under Other Than Honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 92 (2 Specifications), disobeying a Lawful order, to wit: He committed sexual harassment against HA T_ M. D_ by making unwelcome verbal comments of a sexual nature which created an offensive working environment and guilty of sexual harassment against K_ G. B_, by repeatedly making unwelcome verbal comments which created an offensive working environment. Charge II, violation of UCMJ, Article 134: Indecent assault, because on or about April 1995, he did slide his hand up and down the leg of K_ G_, a person not his wife, with the intent to gratify his lust/sexual desires. The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under Other Than Honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

960823:  Chief of Naval Education and Training, exercising GCMCA, approved the applicant’s request for an administrative separation under Other Than Honorable conditions, in lieu of a trial by court-martial, and directed applicant’s discharge.

960903:  Commanding Officer, Naval Hospital, Pensacola directed the applicant’s discharge under Other Than Honorable conditions in lieu of trial by court martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960906 under Other Than Honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims he was never formally charged and was not given the opportunity to present his case at a court martial hearing. The applicant’s record contains an official copy of the charge sheet, containing the charges against the applicant resulting in his discharge. Additionally, documentation exists that proves the applicant requested separation under Other Than Honorable conditions, in lieu of trial by court martial, which was approved by his chain of command. The applicant was under advisement of legal counsel at the time of his request. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C. 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.

D. 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.

E. 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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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