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NAVY | DRB | 2005_Navy | ND0500047
Original file (ND0500047.rtf) Auto-classification: Denied


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

ex-DCFA, USN
Docket No. ND05-00047

Applicant’s Request
The application for discharge review was received on 20041004. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before a traveling panel closest to St Louis, Missouri. The Applicant did not list a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, D.C. Metropolitan area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.


 Decision

A documentary review was conducted in Washington, D.C. on 20050107. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found no improprieties but did find the discharge to be inequitable in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: GENERAL (UNDER 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:

“While serving aboard the USS Shoup I was sexually harassed by several senior Petty Officers and Chief Petty Officers. This harassment eventually led to my being forced (raped) to engage in sexual acts with the senior Petty Officers aboard the ship.

At the time the harassment was going on I was very frightened. I didn’t know whom I could trust for one of the men harassing me was a Chief Petty Officer in my direct chain of command. I eventually reported the sexual harassment to the chaplain, who intern reported the situation to my commander.

My commander blamed me for running the careers of the very men who were sexually harassing me. My commander didn’t seem to understand the situation I was in. The Navy trains us to take orders from higher-ranking individuals. All of the men involved were higher ranking and I had no where to go.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Department of Veterans Affairs Administrative Decision, undated (4 pages)
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000830 - 000926  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000927               Date of Discharge: 030620

 Length of Service (years, months, days):

         Active: 02 08 24
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 75

 Highest Rate: DCFN

 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

* No marks found in record

 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 :

021017:  NJP for violation of UCMJ, Article 92 (8 Specifications): Failure to obey order or regulation, violation of UCMJ, Article 125 (4 Specifications): Sodomy, violation of UCMJ, Article 134 (5 Specifications): Adultery, violation of UCMJ, Article 134 (2 Specifications): Indecent acts with another, violation of UCMJ, Article 134 (6 Specifications): Soliciting another to commit an offense.
         Award: Forfeiture of $620 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
030529:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
030529:          Applicant advised of her rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to waive all rights.
030609:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030610:  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 20030620 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 but not equitable (C and D).

A documentary discharge review was conducted in Washington, D.C. on 20050107. After review of the Applicant’s service record and other evidence presented to the NDRB, the Board determined that relief is warranted under equitable grounds. The Applicant’s misconduct included violations of the UCMJ Articles 92 (Failure to obey order or regulation – 8 Specifications), Article 125 (Sodomy – 4 Specifications), Article 134 (Adultery – 5 Specifications), Article 134 (Indecent acts with another – 2), and Article 134 (Soliciting another to commit an offense – 6 Specifications). This misconduct stemmed from a series of inappropriate relationships with eight senior enlisted personnel aboard her ship. The Applicant alleged that these senior enlisted personnel exerted pressure upon her to engage in this behavior. By virtue of their seniority and their position in the chain of command, the Board found the Applicant’s assertions credible. The record indicates that she was punished more harshly than the eight sailors involved in the case, resulting in the Applicant’s discharge from the naval service. Accordingly, the Board found unanimously that the Applicant’s punishment and resulting discharge characterization was disproportionate with her level of culpability in the misconduct. As such, the Board voted unanimously that the discharge characterization was inequitable and that it shall change to General (Under Honorable conditions). Relief granted.

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. 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023

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