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NAVY | DRB | 2002_Navy | ND02-00401
Original file (ND02-00401.rtf) Auto-classification: Denied


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


ex-ABE3, USN
Docket No. ND02-00401

Applicant’s Request
The application for discharge review, received 020225, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 021008. 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, as submitted

 1. I was charged with dereliction of duty in the early part of 1993 whereby a mishap happen between two of the airman’s I was in charge with, dealing with some sort of sexual harassment between the said individuals. I wasn't present or even aware of the situation but I did mention to the investigating officer that I have heard of it, a few days after it occurred. Since I failed to report what had happen, I was charge with deselecting my duty which I couldn't or didn't understand why because of a hearsay, I was accuse of not doing my job, and so I requested for a court martial. I did a series of research after I was granted the request that I submitted to be discharge due to my own confusion and pressure from the command that I've learn that a sexual harassment policy includes that the victim or victims involve, must report what happen to their chain of command. Thus (the) saying that they were offended by so & so with a grievous act "paraphrasing" and since I was the petty officer in charge (ABE2) in line division VAW-110 NAS Miramar for night check, the incident should have been reported to me first, but it wasn't!!! How can I report something I have no knowledge of? Had it been reported to me or was approached by the victim and I have not done anything about it, then, I am liable and guilty of not doing my job, but I wasn't approached. If I'm not mistaken the airman’s names are W_ (male), L_ female. The supporting issues and records of my claim can be verified in my service records (if entered by investigating officer). You can see my dear sir, that if you review my service records carefully that I've worked hard to get to second class petty officer and I made a serious mistake by requesting to get out without fighting.
I have worked very hard to get from an average sailor to almost 4.0 at one point especially joining the arm forces one year after migrating from the beautiful islands of the Philippines.... learning English alone was difficult but the Navy have a way of teaching it's members and bring out the best in them. Even now, I still practice a lot military traits I've learned. I give the Navy the credit for teaching me and developing in me a true soldier, a patriot and I are proud to be a Filipino-American. I have made a lot of mistakes in my younger days but whatever I do, I cannot change things, but only take responsibility and be accountable for everything I have done wrong in the past and whatever the outcome of this request is, I still hold the Navy in highest regards for teaching me. I've come to know the Lord Jesus since I've been discharge from active duty and even now I still makes mistakes but I thank God for forgiving me and changing me each and everyday for a better future and become a productive member of society.
 I thank you for your time and kindly considering this request.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880326 - 880524  COG
          Active: USN                        880525 - 920523  HON
Period of Service Under Review :
Date of Enlistment: 920524               Date of Discharge: 930730
Length of Service (years, months, days):

          Active: 01 02 07
          Inactive: None

 Age at Entry: 21                          Years Contracted: 4
Education Level: 12/13            AFQT: 27

 Highest Rate: ABE2
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.10 (2)                OTA: 3.40
Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR (3), AFEM, NDSM, GCM, BER, SASM with 2 Bronze Stars, KLM, NUC

 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 3630650.

 Chronological Listing of Significant Service Events :

920524:  Applicant reenlisted for 4 years.

 930302:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a superior officer on 18Feb93.
         Award: Forfeiture of $200 per month for 1 month, reduction to ABE3. Reduction suspended for 6 months. No indication of appeal in the record.
930305:  Retention Warning: Advised of deficiency (Insubordinate conduct toward a senior petty officer, disrespectful in language), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930318:  Vacate suspended reduction to ABE3 awarding at CO's NJP dated 2Mar93 due to continued misconduct.
930329:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (2 specs) and Article 107.
930629:  Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required. Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense. Applicant is fit for duty and should be held responsible for his actions.
Undated:         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 offense(s) 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 specs): (1) Derelict in the performance of duties on 12Feb93, (2) Fail to obey orders by not being present at Captain's Mast as part of his division, and Article 107: False official statement, to wit: “never heard of any indecent exposure occurring in my work center." 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. Applicant’s statement included a request to be administratively reduced to E-3.

930716:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930730 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).
Issue 1. In the applicant’s request for separation, the applicant admitted guilt to the charges that resulted in his administrative separation. Despite the applicant’s present claim that he was innocent of the charges, the preponderance of evidence in the record indicates that the applicant was responsible for his conduct and that he should be held accountable for his actions. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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 5, effective
05 Mar 93 until 21 Jul 94, 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 91, insubordinate conduct toward a superior officer, Article 92, failure to obey a lawful general order, and Article 107, false statements.
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 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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