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NAVY | DRB | 2004_Navy | ND04-00254
Original file (ND04-00254.rtf) Auto-classification: Denied


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


ex-AO1, USN
Docket No. ND04-00254

Applicant’s Request
The application for discharge review was received on 20031125. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to submitting the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

 Applicant’s issues, as stated on the application:
1. “My discharge was inequitable because it never happened. My name was mud thanks to LCdr L_ before I arrived to weapons and the one person I asked for on my behalf AO2 C_ was never called. Nor was AN M_ who was another person that should have been present was not. The chief investigator LNC H_ was also an advisor during proceedings.
My record from 1984 to time of discharge is truly 18yr plus of decated services and with sacrifice to my wife and three kids 18 plus yrs account for something. Thank you”
Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 2. “The applicant records reflect that he was an outstanding sailor, achieving 4.0 evaluations, the records further shows that he was a superb trainer that needed minimum of supervision In fact his 1999 evaluation stated that his level of knowledge far exceeded his pay grade. We find it hard to believe that a sailor of this caliber would commit the offense that he was accused of. The applicant contends that he requested a witness to be called to testify on his behalf at his hearing proceedings but his witness was never called to testify. We believe the applicant had a constitutional right to have his witness testify on his behalf, since that did not happen, we contend there is an issue of propriety with the applicant discharge. Therefore we concur with his contention that his discharge be upgraded.

We refer this case to the Board for their careful consideration and request the applicant’s Under Other Than Honorable Discharge be upgraded to Honorable.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
 Applicant’s statement of facts
 Two performance evaluations

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840507 - 840524  COG
          Active: USN                        840525 - 880314  HON
                                              880315 – 920409  HON
                                              920410 – 960305  HON
                                              960306 – 000113  HON

 Period of Service Under Review :
Date of Enlistment: 000114               Date of Discharge: 020809

 Length of Service (years, months, days):
         Active: 02 06 27
          Inactive: None
Age at Entry: 36                          Years Contracted: 4

Education Level: 12                        AFQT: 29
Highest Rate: MA1(AW)

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 4.33 (3)    Behavior: 3.33 (3)                OTA: 3.66

 Military Decorations: None
Unit/Campaign/Service Awards: CGUCR, AFEM, GCM (4), NEM, SSDR (3), NMCAM (2), NER (4), NDSM (2), MUC (2)

 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 :

000417:  Counseling: Advised of deficiency (Disobey lawful general order, sexual harassment by making inappropriate comments to SK3 I_), notified of corrective actions and assistance available.
010202:  NJP for violation of UCMJ, Article 92 (4 Specs): Failure to obey a lawful general order; wrongfully making unwanted comments of a sexual nature towards EM3 C_, EM2 P_, EM3 T_, and EM3 W_.
         Award: Forfeiture of $500 per month for 2 months, restriction for 10 days, reduction to MA2. No indication of appeal in the record.
010208:  Forced conversion from rate of MA1(AW) to AO1.

 011210:  Preliminary Inquiry into alleged sexual harassment by Applicant. Investigating officer found that Applicant sexually harassed AOAN G_, AOAN M_, and AOAN R_. Recommended Commanding Officer’s Mast.
020204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020204:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020419:  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 by a vote of 2 to 1 recommended discharge under other than honorable conditions.

020422:  Counsel for respondent submits Letter of Deficiency. Counsel claims that phone calls made by board members during the board were inappropriate.
020607:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. AO1 has a history of sexually harassing young sailors.
020729:  CNMPC 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 20020809 under other than honorable conditions for misconduct due to the 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and a finding by a preliminary inquiry that the Applicant sexually harassed subordinates. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. The Applicant’s time in service and other positive aspects of his record do not mitigate his characterization of service sufficient to warrant a change. Relief denied.

 Issue 2. The absence of witnesses desired by the Applicant at his Administrative Discharge Board does not render that board’s findings improper or inequitable. The Applicant’s claim that the chief investigator and an officer in his command were biased against him is not corroborated by the evidence of record and does not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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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