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NAVY | DRB | 2000_Navy | ND00-00095
Original file (ND00-00095.rtf) Auto-classification: Denied


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

ex-HM1, USNR
Docket No. ND00-00095

Applicant’s Request
The application for discharge review, received 991025, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant designated the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720. 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 – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The Former Service Member (FSM) served honorably in the United States Navy for approximately 18 years, until his final discharge in January, 1988. We continue to support the FSM in his contentions and we ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.

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: USNR              810411 - 860710  HON
                                             770126 - 810410  HON
                                             740303 - 770125  HON
         Inactive: USNR            740126 – 740302  HON
 700728 - 711026  HON
          Active: USNR              651027 - 700727  HON - Relacdu

 Period of Service Under Review :
Date of Enlistment: 860711               Date of Discharge: 880108

 Length of Service (years, months, days):

         Active: 01 05 29
         Inactive: None

 Age at Entry: 38                          Years Contracted: 3

 Education Level: 15½                        AFQT: N/A (took ASVAB)

 Highest Rate: HM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (4)     Behavior: 3.6 (4)                 OTA: 3.9

Military Decorations: None

 Unit/Campaign/Service Awards: GCM(4), NDSM, VSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.




 Chronological Listing of Significant Service Events :

860711:  Reenlisted for a term of three years at Personnel Support Detachment, Treasure Island, CA.

870619:  NIS Report: (Sex abuse - child (III)) Investigation conducted pursuant to UCMJ Articles 125 (sodomy), 128 (Assault) and 134.

870730:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offenses of sexual and physical abuse and assault upon your daughters, J_ L_, and J_ L_ as evidenced by the interviews contained in NIS investigation 12MA ROI/19 JUN 87/CCN: 16JUL86-12MA-0249-8BRR/F.
870731:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
871030:  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.

871125:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offenses of sexual and physical abuse and assault upon his daughters. Commanding officer’s comments (verbatim): "I concur with the finding and recommendations of the board and specifically concur that HM1 (Applicant)'s separation should be under Other Than Honorable conditions. Delays were experienced in this case which were attributable to (1) difficulties coordinating counsel for the respondent's courts-martial representation with this board, (2) insertion of my Staff Judge Advocate as recorder when it became apparent that this was [a.....] and difficult case to prove, (3) unsuccessful efforts to obtain Los Angeles County Juvenile Court transcriptions and documents regarding abuse of the L_ children and (4) scheduling the appearance and funding of S_ L_ and her guardian for testimony before this board. The evidence of abuse is consistent with the history of physical, sexual and emotional battering experienced by the L_ children. A Juvenile court has made custodial decisions favoring the guardian over the natural father (after the tragic death of their mother) based upon evidence of abuse provided in an adversarial judicial setting where HM1 (Applicant) had counsel and testified. S_ testified at length at this board, adopted her prior statements to NIS and was cross examined by respondent's counsel. The family advocacy record paints a picture of a fractured family with two teenaged daughters attempting to deal with the "fallout" of their father's misconduct upon them. HM1 (Applicant) steadfastly avoided attempts to evaluate him for his needs and has consistently sought to place blame on others for his predicament. He has firmly demonstrated that he is not a suitable candidate for diversion into the family advocacy program for intrafamilial physical and sexual abuse offenders."

871217:  CNO OP01 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 880108 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).

In the applicant’s issue 1, the Board determined this issue is without merit. The Board reviewed the applicant’s entire service record and all associated documents pertaining to this case, for propriety and equity and determined the discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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      



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