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NAVY | DRB | 2002_Navy | ND02-00174
Original file (ND02-00174.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND02-00174

Applicant’s Request
The application for discharge review, received 011210, 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 020731. 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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. The inclusion of an OTH as part of my punishment was excessive.
I was the one that came forward (reporting a sailor exposing himself) a statement against him after he attacked a female sailor shortly thereafter, I was punished for doing so:
Promotion denial in December 2001. Shore leave restrictions. Extra work detail
The above punishments came prior to my Captain's mast. After Captains mast I rec'd additional restrictions/duty. The OTH was given because of the incident evolving a sailor exposing himself in my presence. And the Navy condemns me prior to his trial. I had not been called to give a statement, as to what I said happened. But given an OTH based on that incident at the time of my Captain's mast.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's statement
List of achievements
Copy of letter of commendation dated December 26, 2000
Copy of letter of commendation for November 20, 1998
Copy of personal award recommendation dated February 24, 1999
Letter to Applicant from CO regarding letter of commendation dated June 10, 1999
Letter to Applicant from Commander regarding letter of commendation dated June 2, 1999
Copy of citation for September to October 1998
Copy of letter from Regis College regarding acceptance for admission dated January 10, 1997
E-mail's between Applicant's mother and Regis School dated December 21, 2000 and January 9, 2001
Statement from Applicant dated November 11, 2001
Letter from Navy Personnel Command to House of Representatives dated July 3, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970115 - 970902  COG

 Period of Service Under Review :
Date of Enlistment: 970903               Date of Discharge: 010523

 Length of Service (years, months, days):

         Active: 03 08 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 0.00 (0)    Behavior: 0.00 (0)                OTA: 0.00

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR (2), SSDR, AFEM

 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 :

990419:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order on Mar99 to Apr99, to wit: allowing a civilian to reside in her assigned BEQ room
         Award: Letter of caution, restriction and extra duty for 45 days. No indication of appeal in the record.
990420:  Retention Warning: Advised of deficiency (Failure to obey lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010226:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Indecent acts, to wit: on divers occasions between August 2000 and October 2000, commit indecent acts with SN by grabbing, talking dirty to him, stroking his penis with her hands, moving his penis back and forth between her legs, licking his ear, and arousing him to ejaculation, (2) Conduct prejudicial to good order and discipline, to wit: on divers occasions between June 2000 and February 2001 wrongfully and unlawfully engage in sexual activity with BN3 on board USS HARRY S TRUMAN.
         Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. No indication of appeal in the record.
010319:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010319:  Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010425:  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.

010519:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010520:  COMCARGRU 2 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 010523 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).

Issue 1: The Applicant asserts that an other than honorable characterization of service was excessive. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An other than honorable discharge is appropriate when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. A one-time incident can serve to significantly outweigh the positive aspects of the member's service. T he Applicant was afforded all of her rights and elected to have an Administrative Board review her case. The Applicant was represented by a member of the Judge Advocate General's Corps. Based on a preponderance of the evidence, the Board determined that the Applicant's service should be characterized as other than honorable. T he Applicant’s disregard of rules and regulations formed the primary basis for determining the character of her service. The Administrative Board reviewed all of the evidence presented, and the live testimony of witnesses. The Applicant was afforded the opportunity to present her full defense. It was their opinion that the Applicant's conduct warranted an other than honorable characterization of service. The NDRB presumed regularity in the conduct of the Board. The NDRB found the evidence presented by the Applicant to be lacking to warrant an upgrade to her characterization of service. Relief is not warranted.
The following is provided for the benefit of the Applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.


E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. Relief on this basis is denied.
The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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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