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NAVY | DRB | 2000_Navy | ND00-00400
Original file (ND00-00400.rtf) Auto-classification: Denied


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

ex-YN2, USNR
Docket No. ND00-00400

Applicant’s Request
The application for discharge review, received 000210, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to The Secretary Authority. The applicant requested a documentary record discharge review. The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111. 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 and the reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim):

 Issue # 1 : Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequence of a bad discharg I feel that the Administrative Discharge Board acted without thought to the fact my civilian attorney was not able to represent me and present the facts that would have shed favorable light on my case. I also feel that this Board did not even consider this (the information in the above paragraph) and voted for an Other Than Honorable discharge was an injustice that it severely limits my opportunities to seek meaningful employment in the civilian sector. A gross injustice was done to me and therefore I ask for clemency. Issue #2: Under current standards, I would not receive any type of discharge. I feel that I was wrongfully discharge. As a yeoman I had many opportunities to examine other member's personnel records. There were instances I noted that offense much worse than mine were involved, examples; Murder, attempted murder, sexual assault, rape repeated drug and alcohol violations.
Yet in my case it was isolated, victimless crime. I was judged harshly and not even considered for the Navy's way of a second chance. Yet, others were allowed to remain on active duty at that. Since my offense it has been 5 years I am an above average performance with no other infractions either civil or military. My private civilian attorney and I saw the point in discharging me. I feel unjustly ruled out in my case.
 Issue #3: My average conduct and efficiency ratings/behavior and proficiency marks were good (or pretty good). My personal file reflects my good conduct and may desire to excel in the Navy. My history of assignments shows that I went beyond what was required of a reservist. I always asked and sometimes received extended period of active duty up to five months at a time. Both my Commander and the Executive Officer wrote letters on my behalf pointing this trait. All of my evaluation reports were above average. Issue: 4: I received awards and decorations. Please see attachments. Issue #5 : I received letters of recommendation. Please see attachments.
Issue #6 : I have been a good citizen since discharge. Since discharge and prior to I have always remained a steadfast church attendant and volunteer helper in my parish. If you will note my volunteer work within my parish and letter -written on behalf from the parish priest reflect this. I have been an active member in my local church for about ten years now. When not drilling or on ADT I work my civilian job as a painting contractor. My clients are many and can attest to my good character as they have continually called back for additional work over the years. Since my discharge I have been worked continually as a painter and have been active in my church. I have had no other altercations with any people or the law. Issue: #7: My record of convictions by civil authorities while I was in service indicates only isolated offenses. My offense occurred while I was off duty and not on Navy property. It (the civilian offense) is five years since it occurred. This isolate incident in my life was a first abortion of judgment, prior to that and since then I have had no other altercations with the law.

Since five years has elapsed, plus the fact no further altercations or convictions,- I feel my civilian conviction is truly an isolated offense. Issue #8: The punishment I got at discharge was too harsh it was much worse than most people got for the same offense. As I mentioned previously that I am a yeoman. Over my six years as a reservist I did come across several members (of my assigned unit) who had committed much more serious crimes than I did. Some even while on duty, yet they were given a second chance (and some several chances). Hence they were allowed to remain in the service. Yet looking at my offense (5 years old at that) not even as severe as others as it was a victimless crime, my punishment/judgment was too harsh. Issue #9 : My command abused its authority when it decided to discharge me and decided to give me an other than honorable discharge. My discharge was improper because the command did not follow the discharge regulations. I need to point out my command set an original board date and abruptly changed this date making it 2 weeks sooner. This change caused both my civilian attorney and Unit CO to be unable to attend. Why this was done I don't know, but it did cause me to have an unfair representation at the board. Both my civilian attorney and Unit CO were key persons on my behalf. I feel this change in date was an amoral procedure by my command. My command CO had even given me the right to a civilian counsel (see attached) yet denied me when I surely needed him. Even after the board's decision when my attorney was able to represent me and my Unit CO returned back into town, the command CO gave no help, cooperation or procedure on how to either appeal or have their argument presented. My civilian attorney, myself and Unit CO were unable to either stop the case from going up the chain of command or get any cooperation from my command on how to go about appeal. My attorney feels this was not due process of law and I feel my Article 31 of UCMJ and 5th amendment of the U.S. Constitutions was violated. I have since outlined all that took place over a 6-7 months period to the Navy IG and an I0 has started to investigate the matter as of November 19, 1999. I feel my discharge was improper for the above reasons.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
American Legion letter of 7 Dec 2000 with comments/recommendation
CINCPACFLT (Fleet Public Affairs Officer) ltr of 20 Nov 98 concerning applicant's performance
CINCPACFLT (Fleet Quality Improvement Off/Flt Inspector General) ltr of 13 Oct 98 concerning applicant's performance
Certificate of Completion (Intro to NT Workstation) dated 11/17/98
Certificate of Completion (Intro to MS Outlook) dated 11/17/98
Certificate of Completion (Intro to MS Access) dated 11/16/98
BNCR ltr of 13 Jan 98 notifying applicant of the Decision
BCNR ltr to SECNAV dated 13 Jan 98 with Decision
CINCPACFLT ltr of 11 Dec 97 concerning applicant's performance
USS WADSWORTH ltr of 16 Jun 97 to Applicant concerning promotion
Navy Unit Commendation
CHNAVRES ltr of 16 May 96 concerning applicant's performance
PERSUPPACTDET London, UK ltr dtd 10 Jan 95 concerning applicant's performance
OIC, NAVRESFOR DET Management School, New Orleans, LA ltr dtd 10 Dec 93 concerning applicant's performance
Advancement Certificate dated 10 Dec 93
USS PUGET SOUND ltr of 24 Sep 93 concerning applicant's performance
Accreditation Letter for Bachelor of Arts Degree dated 28 May 97
Applicant's Personal Data (Historical Individual Accomplishment) dtd 13 Apr 99
Satisfactory Participation Requirements/Record of Unexcused Absences signed by applicant on 16 May 98
8 Performance Reports
CO, NR ONR SCI & TECH 613 ltr of 23 Jul 99 concerning applicant's performance
Character Reference letter from CDR D_ S_, dtd 12 Aug 99
Outstanding Performance award (2)
Letter of Commendation
Awards Service Record page (NAVPERS 1070/604) (2 copies)
Applicant's undated and unsigned letter to the Convening Authority
Applicant's attorney's ltr dated Jul 19, 1999 to Read Admiral E_ E. H_.
Character Reference ltr from Rev. E_ V. B_, St. James at Sag Bridge Church dtd 7 Apr 99
Character Reference ltr from B_ L. B_ undtd
Admin Discharge Board Witness Questionnaire from D_ A. B_, RM1, dtd 6-1-99
Service Record History of Assignments (NAVPERS 1070/605)
Service Record Enlisted Performance Record (NAVPERS 1070/609)
Enlisted Qualifications History (NAVPERS 1070/604) (2 pages)
Personnel Qualification Standards (NAVERS 1070/604)
Ltr of Assignment to NR LPH-9 GUAM dated 1 Apr 93
Enlisted Application and Orders to a Naval Reserve Unit dtd 930311
Applicant's statement of outstanding concerning Navy's Drug and Alcohol Abuse Policy dtd 02 Sep 94
Applicant's Statement of Understanding concerning Selected Reserve Educational Assistance Program dtd11 Mar 93
Pre-Enlistment documents (DD Form 1966) (3 pages)
Active duty orders dated 12 Apr 97 (5 pages)
ACDUTRA PAY VOUCHER (NAVCOMPT FORM)
Official Active Duty For Special Work Orders dtd 15 Apr 97
Active Duty for Training orders dtd 22 Apr 97
ACDUTRA PAY VOUCHER
Birth Certificate
Personnel Security Action Request dtd 10 Dec 93
Trinity Christian College Bachelor of Arts Certificate (1981)
Moraine Valley Community College Associate in Science Certificate (MAY 79)
Carl Sandburg High School Diploma Certificate (June 1975)
Civilian Occupational Skills Questionnaire
Active Duty for Training orders dtd 15 Oct 98
ACDUTRA PAY VOUCHER 25 Nov 98
ACDUTRA PAY VOUCHER 6 Nov 98
Active Duty for Training orders dtd 16 Jun 98
Active Duty for Training Modification orders dtd 13 Aug 98
Active Duty for Training Modification orders dtd 11 Aug 98
Active duty for Training orders dtd 10 Aug 98
ACDUTRA PAY VOUCHER 08/05/98
ACDUTRA PAY VOUCHER 28 Sep 98
Applicant's W-4 dated 27 Jul 98
Active Duty for Training orders dtd 24 Oct 97
Dependency Applicant/Record of Emergency
Applicant's W-4 dated 1 Dec 97
Hale Koa Hotel (room charges) dated 12/1/97
Airport Express charges dtd 30 Nov 97
ACDUTRA PAY VOUCHER 1 Dec 97
ACDUTRA PAY VOUCHER 12/11/97
Active Duty for Training orders dtd 24 Oct 97
Individual Inactive Duty Training Participation Record (970328)
Equivalent Training/Reschedule Drill Requirement and Training Plan (15-16 Mar 97 to 27-28 Mar 97
Active Duty for Training orders dtd 28 Feb 96
ACDUTRA PAY VOUCHER 05/09/96
Ready Reserve Screening Questionnaire dtd 19 Aug 95
Applicant's W-4 dated Nov 15, 97
Record of Discharge from the U.S. Naval Reserve dtd 99JUL21
IDT History Review (2 pages)
Drill Muster Record (2 pages)
Applicant's ltr to the American Legion dtd Feb 3, 2000
House of Representative (W_ O. L_) ltr to NDRB
VA's ltr to Applicant dtd Mar 7, 2000, concerning IG report
Applicant's request, dtd Mar 7, 2000, to CNO, for copy of IG report
Character Reference ltr from Rev. G_ D_, Italian Cultural Center, dtd Apr 1, 2000
Character Reference ltr from B_ S_, World Changers, dtd Apr 5, 2000
NCIS Report dtd 2 Mar 99
Administrative Board Decision and the Proceedings (15 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 930311               Date of Discharge: 990721

 Length of Service (years, months, days):

         Active: 00 09 16
         Inactive: 05 06 24

 Age at Entry: 35                          Years Contracted: 8

 Education Level: 18                        AFQT: 84

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (3)     Behavior: 4.0 (3)                 OTA: 4.0 (4.0 evals)
3.5 (4)         3.75 (4)                 3.36 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: LOC (3), NDSM, NUC, SSDR, NRMSM(2)

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

990302:  NCIS Report: Initiated following the report from the Illinois State Police, Intelligence Bureau, that applicant had been convicted of child pornography and Illinois law was required to register as a sex offender. Applicant has failed to register, which is a class four felony in Illinois. During the attempts to locate Applicant, the Illinois State Police information obtained indicated that he was a member of the U.S. Naval Reserves. CDR G_ H_, CO, NAVRESCEN Forrest Park, IL was contacted and confirmed that Applicant is a selected reservist and was scheduled for period of active duty to begin soon. CDR H_ stated he had no prior knowledge of the arrest and conviction of Applicant.
         941116: Applicant arrested for child pornography.
         950712: Applicant entered a guilty pleas in DuPage County Circuit Court and sentenced to periodic imprisonment for 45 days, probation for 36 months and fines and costs in amount of $2,585.00. Applicant was also ordered to register as a sex offender in compliance with Illinois State Law.

 990612:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, by a vote of 2 to 1 that the misconduct warranted separation, and by unanimous vote, recommended discharge under other than honorable conditions. The dissenting member comments: "The concern is that this member's role in the Naval Reserve may be preventing him from further misconduct and that immediate separation may prove the greater disservice to his community."

990721:  Applicant was discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Applicant’s discharge package is missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990721 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 and reason for discharge was proper and equitable (C and D).

 The Board found that the applicant entered a guilty plea in the DuPage County Circuit Court for child pornography on 950712. The applicant’s command did not find out about this conviction until 990302. The applicant was then processed for administrative separation for misconduct due to commission of a serious offense. In response to the applicant’s issue 1, the NDRB does not have the authority to grant clemency. The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general). The Board reviewed the applicant’s discharge to include his post service accomplishments since his recent discharge in 990721. The Board found that the applicant has not been out of the service long enough to demonstrate his continuous, positive contributions to his community. No relief will be granted based on this issue.

The applicant made an additional statement in issue 1 stating, “ I feel that the Administrative Discharge Board acted without thought to the fact my civilian attorney was not able to represent me and present the facts that would have shed favorable light on my case. I also feel that this Board did not even consider this (the information in the above paragraph) and voted for an Other Than Honorable discharge was an injustice that it severely limits my opportunities to seek meaningful employment in the civilian sector. A gross injustice was done to me and therefore I ask for clemency.” T he Board cannot judge how the Administrative Board may have felt at the time, nor is it this Board’s job to question the Administrative Discharge Board’s recommendations. The fact remains that the applicant admitted guilt to child pornography. He was then properly processed for administrative separation and discharged from the Navy for this conviction. No relief will be granted based on this issue.

In response to the applicant’s issues 2 and 8, the applicant states that “u nder current standards, I would not receive any type of discharge.” The Board found that the applicant was properly discharged on 990721 for misconduct due to commission of a serious offense. The applicant goes on to say that “as a yeoman I had many opportunities to examine other member's personnel records. There were instances I noted that offense much worse than mine were involved, examples; Murder, attempted murder, sexual assault, rape repeated drug and alcohol violations. Yet in my case it was isolated, victimless crime. I was judged harshly and not even considered for the Navy's way of a second chance. Yet, others were allowed to remain on active duty.” The Board found that the punishment of any service member was then, and is now, a legitimate function of command judgment and prerogative. Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct. Relief is denied based on issue 2.

 In the applicant’s issues 3 through 5, the Board found that the applicant’s misconduct consisting of child pornography, outweighed the positive aspects in his service record, to include his evaluation marks. No relief will be granted based on this issue.

In the applicant’s issue 6, t he following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. At this time, the Board has found no error or injustice, nor has the applicant provided documentation to show that an error or injustice occurred. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

In the applicant’s issue 7, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

The applicant states in issue 9 that “m y command abused its authority when it decided to discharge me and decided to give me an other than honorable discharge. My discharge was improper because the command did not follow the discharge regulations.” The Board found that the command did follow the discharge regulations for misconduct due to commission of a serious offense. The applicant was given his proper rights, due process at an Administrative Discharge Board and that the ADB voted, based upon a preponderance of the evidence and by unanimous vote, that the applicant had committed a serious offense, by a vote of 2 to 1 that the misconduct warranted separation, and by unanimous vote, recommended discharge under other than honorable conditions. This Board found that the discharge was proper and equitable. Relief is denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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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