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NAVY | DRB | 2001_Navy | ND01-00307
Original file (ND01-00307.rtf) Auto-classification: Denied


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

ex-YN3, USN
Docket No. ND01-00307

Applicant’s Request
The application for discharge review, received 010117, 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 010629. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. On Nov 1, 1999 I received an General Discharge Under Honorable Conditions, the Separation Code "GKL" hinder the entitlement of separation pay for my continuation naval service for 11 years. I did not receive any benefits. Under going separation I was not given proper separation advise such as TAP class, separation briefing. The Admin Board proceeding held onboard CVN-14, Commander Carrier Air Wing NAS Lemoore CA - NAS Lemoore, CA Judge Advocate Legal Office was unjust, unfair, humiliating, degrading and inappropriate with legal procedures, guidelines, instructional tactics. Upon Privacy Act Code, my counsel and I requested tapes from Admin board proceeding, the transcripts were requested for review, there were misprinted copies, separate attach addendums and lost of procedural letters. My counsel submitted letters of discrepancies, deficiencies to the prosecuting lawyer. Procedurals were done incorrect, unfair, unjustifiable and wrong. The Admin Board members - proceedings knew members on the stand - witness/personal contact and no evidents was conclusive nor evidence. This Administrative Board proceedings was based on hear say. Witnesses that were on Admin Board of Prosecutor or for the Prosecutor were discharged on major separate offenses. I was set-up, betrayal and falsely accused of nonsense. Read the transcript and hear the tapes.
This admin copy is undergoing additional research thru council/congressman. Copy submitted to Service Member Legal Defense Network.

 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                        920730 - 941207  HON
                                             880826 - 920729  HON
         Inactive: USNR (DEP)     880816 - 880825  COG

 Period of Service Under Review :
Date of Enlistment: 941208               Date of Discharge: 991101

 Length of Service (years, months, days):

         Active: 04 10 24
         Inactive: None

 Age at Entry: 32                          Years Contracted: 6

 Education Level: 12                        AFQT: 24

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (2)     Behavior: 3.8 (2)                 OTA: 4.00 (4.0 evals)
                  3.33 (6)                 3.17(6)                           3.27 (5.0 evals)

 Military Decorations: NAM

Unit/Campaign/Service Awards: NUC, NER, GCM, SASM, AFSM, SSDR, KLM

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

941208:  Reenlisted for a term of 6 years at NAS Jacksonville, FL.

951015:  Joined COMCARAIRWING FOURTEEN for duty.

960411:  Applicant counseled concerning the handling of classified messages and diskettes. Corrective action provided.
980710:  Applicant provided a statement for the record.

980819:  NCIS Report of Investigation (indecent assault).

 980819:  NJP for violation of UCMJ, Article 134 (7 Specs):
Spec 1 - on or about 28 Jan 98 orally communicate indecent language toward YNSA M_, to wit: "I want to suck your dick".
Spec 2 - on or about 28 Jan 99 communicate indecent assault upon YNSA M_, with intent to gratify his sexual desires.
Spec 3 - on or about the period of Feb 98 orally communicate indecent language toward YNSA M_, to wit: "How big is your dick? How many times can you bust a nut?"
Spec 4 - on or about the period of Feb 98 wrongfully solicit AN D_ to engage in sodomy.
Sepc 5 - on or about the period of Apr 98, commit an indecent assault upon AN D_ with the intent to satisfy his sexual desires.
Spec 6 - on or about the period of July 98 orally communicate indecent language toward AA G_, to wit: "If you could get your dick sucked right now on the ship, would you do it?"
Spec 7 - on or about the period of Apr 98, orally communicate indecent language toward FN A_, to wit: "You need to let me suck your dick".
         Award: Forfeiture of $716 per month for 2 months, reduction to E-4.

980819:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of homosexual conduct by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act(s), as evidenced by all punishments under the UCMJ in your current enlistment.
980819:          Applicant advised of his rights and having not consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements to the admin board or separation authority in lieu of a hearing and the right to obtain copies of the documents used to support the basis for the separation.
980820:  Applicant appealed the nonjudicial punishment of 19Aug 98.

 980821:  COMCARAIRWING 14recommended to BUPERS discharge of applicant by reason of misconduct due to the commission of a serious offense and by reason of homosexual conduct by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act(s), as evidenced by all punishments under the UCMJ in your current enlistment
980824:  COMCRUDESGRU THREE denied applicant's appeal.
980824:  Applicant reported to NAS Lemoore CA to await admin discharge.

980915:  CNPC directed the applicant's discharge Under Other Than Honorable Conditions) by reason of homosexual conduct acts.

980918:  BUPERS advised COMCARAIRWING 14 and NAS Lemoore CA, that since applicant desired to have an Admin Bd, OTH discharge authorized by BUPERS message 15SEP98 cancelled.
990203:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, and committed homosexual conduct by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act as evidenced by nonjudicial punishment for violation fo the UCMJ, Article 134, and that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990212:  Counsel for applicant submitted a request for extension of time to submit his Letter of Deficiency.
990305:  Letter of Deficiency in the Admin Separation Board proceedings of 3 Feb 99.
990811:  Commanding officer recommended to BUPERS discharge of applicant by reason of misconduct due to the commission of a serious offense and by reason of homosexual conduct by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act(s), as evidenced by all punishments under the UCMJ in your current enlistment.

990817:  Applicant submitted a Letter of Deficiency in the Admin Separation Board proceedings of 3 Feb 99.

990907:  BUPERS advised NAS Lemoore that Admin Board made incomplete findings and recommendations and directed reconvene Admin Bd.

991013:  By telephone, BUPERS requested the command (NAS Lemoore) to inquire as to the meaning and intent of the admin discharge board findings of 3 Feb 99

991015:  CDR J_ P. G_, CEC, reported to BUPERS that the Admin Board had found, by a vote of 3 to 0, that the preponderance of the evidence supported findings of misconduct. In announcing these finds of misconduct, I referred to the basis of the misconduct by stating: "With respect to misconduct due to commission of serious offenses, and by reason of homosexual conduct by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act as evidence by nonjudicial punishment for violation of the UCMJ, Article 134". By referring to both misconduct due to commission of serious offenses and homosexual conduct when introducing the findings, it was my intention to record the Board's determination that the member committed both misconduct due to commission of serious offense, and homosexual conduct. This determination reflected the opinion of all three voting members of the administrative discharge board.

991022:  CNMPC directed the applicant's discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense (engaged in sexual perversion, including but not limited to lewd and lascivious acts, sodomy, etc).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991101 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense (engaged in sexual perversion, including but not limited to lewd and lascivious acts, sodomy, etc) (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 “…separation code hinders entitlement of separation pay.” The NDRB found the separation code “GKL” appropriately assigned for the applicant’s documented misconduct. To change the separation code would be inappropriate. Relief is not warranted.

The applicant’s issue that he was not given proper separation advise such as TAP and separation briefing is non decisional. The Board did not find this issue relevant with respect toward the propriety and equity of the discharge. Relief is not warranted.

The applicant’s issue further asserts the Admin Board was improper due to procedural errors. The Board reviewed the Admin Board and found no impropriety or inequity. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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. 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 failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended


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 " afls10.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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