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NAVY | DRB | 2002_Navy | ND02-00677

Original file (ND02-00677.rtf) Auto-classification: Denied

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

ex-CA, USNR
Docket No. ND02-00677

Applicant’s Request

The application for discharge review, received 020415, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I contend that my discharge was invalid because I was being punished on the assumption that I was guilty in Ohio. The Navy had no jurisdiction over the offense that I was charged. They should have sent me to Ohio to defend myself first against the alleged allegations. I was actually intimidated by the officers in the Navy to sign the statements. I feel that I was treated unjustly and am asking the Board to set my record straight. I thought that "I was innocent until proven guilty" in a court of law not a room of Board members.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant's DD Form 214
Thirty-five pages from Applicant's service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 931222               Date of Discharge: 940825

Length of Service (years, months, days):

         Active: 00 07 16
         Inactive: 00 00 17

Age at Entry: 33                          Years Contracted: 8

Education Level: 17                        AFQT: 80

Highest Rate: CN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMF                  Behavior: NMF             OTA: NMF

Military Decorations: None

Unit/Campaign/Service Awards: NDSM

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 3630600.

Chronological Listing of Significant Service Events :

940624: Applicant made a voluntary statement to Naval criminal Investigative Service (NCIS) to the effect that after boot camp he had visited his relatives in Ohio and had committed indecent acts or liberties with their daughter.
         [Specifics found in NCIS statement found in official record and also submitted by Applicant.]

940624: Applicant admitted to Psychiatric Unit, Naval Hospital, Camp Pendleton for evaluation and treatment of suicidal ideation.

940630: Applicant released from Naval Hospital. Diagnosis: Axis I: Occupational problem, DSM-IV V62.20. Axis II: Personality disorder, not otherwise specified, with narcissistic and dependent features, DSM-IV 301.90. Axis III: No diagnosis. Axis IV: 1. Problems with primary support group, alleged sexual abuse of niece. 2. Problems related to interaction with the legal system. Axis V: Global assessment of functioning on admission, 47 as evidenced by the serious symptoms of suicidal ideation. Global assessment of functioning at the time of discharge, 75, the patient's symptoms are transient and are related to his current psychosocial stressors.
         Extract from Present Illness Narrative Summary: “On admission, the patient (Applicant) described middle insomnia, decreased appetite, [energy], anhedonia, decreased concentration, decreased libido, and a hopelessness and a sense of worthlessness. He stated that he deserved to be punished and deserved to die.”
         Recommendation: Although the patient (Applicant) shows a willingness to work on his problems, there is a history that the patient’s (Applicant’s) personality disorder has significantly interfered with his effective performance of his duties. For this reason it is strongly recommended that the patient (Applicant) be separated from the United States Navy in accordance with the Navy Military Personnel Manual, Article 3620200, separation for convenience of the government. Since the patient (Applicant) does not suffer from any major psychiatric diagnosis that is impairing his judgment or insight, he is considered competent and responsible for his behavior and actions. He is also aware of the consequences of his actions. It is therefore recommended that if he destroys property or harms others, then the appropriate disciplinary action should be taken. The patient (Applicant) is also considered competent to manage his own personal and financial affairs.

940630   Applicant talked to a lawyer prior to waiving his right to demand trial by court-martial in lieu of Captain’s Mast.

940630: NJP for violation of UCMJ, Article 134: Indecent acts or liberties with a child, violation of UCMJ, Article 107: False official statement.          Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to CA. No indication of appeal in the record.

940709: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940719:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940720: An Administrative Discharge Board, based upon 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.

940801: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Command Officers comments (verbatim): [The Naval Criminal Investigative Service (NCIS), Port Hueneme, California was contacted by the Columbus, Ohio Police Department in their request to locate the respondent (Applicant). Ohio authorities asked NCIS to interview SA I_ (Applicant) regarding the sexual assault of his cousin’s eight year old daughter. During the first interrogation on 23 June, SA _I (Applicant) denied any knowledge of the allegations. However when he returned to NCIS to sign his statement on 24 June, he gave a second statement acknowledging that indecent acts with the child occurred. Immediately after acknowledging his participation in this incident he became highly agitated and NCIS felt it necessary to have him taken to the Medical Clinic. At the Clinic he acknowledged that he had suicidal thoughts and was subsequently transported by the command to the Psychiatric Unit of the Naval Hospital at Camp Pendleton, California.

         SA I_ (Applicant) was at the Camp Pendleton Naval Hospital for several days and was released a being competent and responsible for his behavior and actions. The psychiatric report assessed the respondent (Applicant) as suffering from a personality disorder and recommended he be separated from military service. The report, however, did not indicate that SA I_ (Applicant) was a danger to himself, others or government property and the command could not institute separation proceedings for this reason without first giving SA I_ (Applicant) the appropriate page 13 warning/counseling. SA I_ (Applicant) continued to talk of having suicidal impulses and it was apparent that a watch would be provident even though medical authorities did not believe he should be readmitted to a medical facility. SA I_ (Applicant) was taken to Captain’s Mast on 30 June and given 45 days restriction so that his behavior could be closely monitored.

         In view of SA_I’s (Applicant’s) eventual admission to NCIS that he had been involved in inappropriate behavior with his cousin’s small daughter, he was processed for commission of a serious offense as evidenced by indecent acts or liberties with a child and making a false official statement to NCIS. He chose to take an administrative board which awarded him an Other than Honorable separation on 20 July.

         Authorities from the Columbus, Ohio Police Department have advised that a warrant for SA I’s (Applicant’s) arrest has been mailed to the command. Upon receipt of this warrant, SA I (Applicant) will be turned over to the Oxnard, California Police Department for transfer to Ohio to stand trial on four counts of rape, one count of sexual penetration and two counts of gross sexual imposition.

         It is obvious that SA _ (Applicant) has absolutely no potential for military service and should never have been recruited. We request his expeditious separation at the earliest possible time.]

940816: BUPERS 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 940825 under other than honorable conditions for misconduct due to commission of a serious offense - [Indecent acts or liberties with a child]. (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 NDRB’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. The official record clearly documents that the Applicant voluntarily admitted to NCIS that after boot camp he visited his relatives in Ohio and committed indecent acts or liberties with their daughter. He was taken to Captain’s Mast based upon his own admission of inappropriate behavior and awarded non-judicial punishment (NJP). The Applicant was notified of his command’s recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. He requested and was granted an Administrative Discharge Board. The Administrative Discharge Board found the Applicant to have committed misconduct due to the commission of a serious offense and also determined that his misconduct warranted separation under other than honorable conditions. Furthermore, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant was responsible for the events that led to his NJP and Administrative Discharge Board and must accept the consequences of his own misconduct. An upgrade to honorable would be inappropriate. Relief denied.

Issue 2: T here 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time the Applicant has not provided any documentation of good character and conduct to mitigate his misconduct while on active duty. 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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