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NAVY | DRB | 2002_Navy | ND02-00673
Original file (ND02-00673.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND02-00673

Applicant’s Request
The application for discharge review, received 020415, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 030116. 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 four to one 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

 1. My career was taken away from me by malicious people intent only revenge. I am requesting that my discharge be upgraded because the allegations that lead to my discharge were vicious and untrue. During the first few weeks of RTC I thought I had made some friends, mainly K_ U_, B_ M_, and S_ M_. During the fifth week (service week) I was very upset that the girls were constantly sleeping in the head while we were supposed to be working in the galley, so I told the MAA that they were sleeping in the head and they all got into trouble. That very same day, the three of them went to Petty Officer R_ and told him that I had been sexually harassing them and that they were "scared to be in the same room with me". I did however remain in my ship with my division until the end of RTC (June 26 2001). Petty Officer R_ told me later that day of what these girls had said, and it left me in complete and utter shock. A few days latter I was called back to the ship from the galley, and was then taken into handcuffs to the front gates where I signed a few initial papers. I told them that I didn't want to say anything without talking to counsel first, so they pointed to some place on the paper and told me to initial it. I was taken back to the ship, and was so upset that I requested to go to the Chaplain immediately. I was given a chit to see the Chaplain and she helped me and talked to me until I was calm. I then returned to my ship and continued with training fully expecting to be called by legal to speak to a lawyer on my behalf. I had also prepared a written statement to give in my defense. Training went on, with hostilities remaining in the ship, even a few other girls beginning to say things about me. After I had completed Battle Station and become a sailor, I was told to go to legal, where I thought I would have my chance to speak to a lawyer on my behalf. I was allowed to review the statements and allegations against me. SR D_ T_ presented a written statement, which I reviewed while in legal, which told of how she had overheard these girls talking about how they were going to "get me" and other things, but her statement was not even taken into account, nor was she present at the mast in front of LCDR C_. There was also another person who had overheard what these girls were plotting, but for her own safety didn’t say anything. SR N_ W_ asked me not to bring her into the proceedings, but told me that she knew what these girls were doing, and I gave her my word that I would try not to get her involved. Those girls were not the only ones who knew though, SR L_ knew, and SR W_, and many others. When I tried to give the gentleman my written statement, he said that it was to late for that, that I had already signed over my right to submit a written statement. I returned to the ship broken, and requested to again visit the Chaplain. She helped me, and told me that everything was going to be ok. Then on June 26, 2001, three days before pass-in-review, I was taken by my brother division' Petty Officer back to legal, where I was put in from of LCDR C_. Three girls who had made claims against me were present, as well as Chief N_, and other people. I was asked if I had done these things, and I said no, that they were false, and I stood there crying while LCDR C_ yelled at me. At one point, I was so upset that I covered my face and said that I hated everyone, and wanted to go home. LCDR C_ said ok, and he said I was to be discharge. I spent the next 2 weeks in separations, and when I presented the options of fighting my discharge, I was told that if I chose to fight it, I would be court-martialed, and found guilty it would then become a felony offense. I was so scared that I did not fight my discharge at that point, and I just signed where they told me. I was sent home on July 13, 2001, and have been waiting for the day to appeal my discharge and hopefully return to the US NAVY. I am not trying to get anyone into trouble, all I want is what was taken away from me. I want my career back, and I want the chance to serve as the good sailor I know that I am, and will be again.

 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):
         Inactive: USNR (DEP)     010323 - 010422  COG
         Active: USN              None

 Period of Service Under Review :
Date of Enlistment: 010423               Date of Discharge: 010711

 Length of Service (years, months, days):

         Active: 00 02 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 78

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

010627:  NJP for violation of UCMJ, Article 92 (4 Specifications), failure to obey a lawful general order, Specification 1: In that SR C_ L. A_, U.S. Navy, RTC, Great Lakes, Illinois, on active duty, did, at or near RTC, Great Lakes, Illinois, on divers occasions from 010423 until 010604, violate a lawful general regulation, to wit: SECNAVINST 5300.26C, A dated 971017, by wrongfully initiating unwelcome sexual behavior towards SR B_ C. M_, U.S. Navy, to wit: By making sexual remarks; touching her in a sexual manner; and staring at her in the shower, thereby creating an intimidating, hostile, or offensive working environment; Specification 2: In that SR C_ L. A_, U.S. Navy, RTC, Great Lakes, Illinois, on active duty, did, at or near RTC, Great Lakes, Illinois, on divers occasions from 010423 until 010604, violate a lawful general regulation, to wit: SECNAVINST 5300.26C, A dated 971017, by wrongfully initiating unwelcome sexual behavior towards SR K_ L. U_, U.S. Navy, to wit: By touching her sides and backside; and by blowing in her ear, thereby creating an intimidating, hostile, or offensive working environment; Specification 3: In that SR C_ L. A_, U.S. Navy, RTC, Great Lakes, Illinois, on active duty, did, at or near RTC, Great Lakes, Illinois, on divers occasions from 010423 until 010604, violate a lawful general regulation, to wit: SECNAVINST 5300.26C, A dated 971017, by wrongfully initiating unwelcome sexual behavior towards SR S_ R. M_, U.S. Navy, to wit: By touching her face and ears and saying "I think we are alone now," or words to that effect, thereby creating an intimidating, hostile, or offensive working environment; Specification 4: In that SR C_ L. A_, U.S. Navy, RTC, Great Lakes, Illinois, on active duty, did, at or near RTC, Great Lakes, Illinois, on divers occasions from 010423 until 010604, violate a lawful general regulation, to wit: SECNAVINST 5300.26C, A dated 971017, by wrongfully initiating unwelcome sexual behavior towards SR S_ E. M_, U.S. Navy, to wit: By touching her hand and blowing in her ear, thereby creating an intimidating, hostile, or offensive working environment.
         Award: Forfeiture of $224.00, restriction and extra duty for 14 days. No indication of appeal in the record.
010702:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010702:          Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010703:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010703:  Commander, Naval Training Center, Great Lakes authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010711:  NJP for violation of UCMJ, Article 92: Violating a lawful general regulation.
         Award: Oral reprimand. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010711 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).

Responding to the Applicant’s issue, the Board found no inequity or impropriety in the Applicant’s discharge. T he Board disagrees with the Applicant's contention that she served the United States well and she is entitled to an upgrade. 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 under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by two NJP’s, both for the commission of a serious offense. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.
The following is provided for the Applicant’s edification. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity 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, 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. The Applicant did not provide any of these documents. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 " 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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