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NAVY | DRB | 2005_Navy | ND0500404
Original file (ND0500404.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MSSA, USNR
Docket No. ND05-00404

Applicant’s Request
The application for discharge review was received on 20050104. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel. The Applicant listed the Veterans Benefits Counselor as the 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 the Washington National Capital Region or Washington DC area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20050812. After a thorough review of the available 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“Dear Sir/Madam:

The following issues are the reason I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

My average conduct and efficient rating/behavior and proficiency marks were very good.

I had a prior Honorable Discharge.

I have no prior NJPs/Article 15s, this was an isolated offense.

I faced racial discrimination and that impaired my ability to serve.

The punishment I got was too severe compared with today’s standards.

The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense.

My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

My discharge was improper because the command did not follow the discharge regulations.

No administration board hearing was held.

My discharge was inequitable based on an isolated incident in 8 years of service with no other adverse action.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Commanding Officer’s Administrative Separation Letter dtd December 1, 1998
Commander’s Discharge Authorization Letter dtd November 13, 1998
Administrative Remarks (NAVPERS 1070/613) dtd November 23, 1998
Commanding Officer, Naval Reserve Personnel Center Discharge Letter dtd November 24, 1997
Applicant’s DD Form 214 for discharge on December 15, 1989 (2)
Veterans Administration Regional Office Hearing Transcript for hearing conducted October 28, 2004, unsigned (18 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            890327 - 890717  (to report ACDUTRA)
 Active: USNR              890718 - 891215  HON (released ACDUTRA)
Inactive: USNR            891216 - 970326  HON
         

Period of Service Under Review :
Date of Enlistment: 971216               Date of Discharge: 981123

 Length of Service (years, months, days):

         Active: [Unknown]*
         Inactive: [Unknown]
         Total:   00 11 08

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA**                 Behavior: NA              OTA: NA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Applicant’s active and inactive periods are not known for this enlistment. The Applicant was on active duty from 980711-980724, returned to active duty at an unknown date and was discharged on 981123.
**Not available

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN 1910-142 (formerly Article 3630605).

 Chronological Listing of Significant Service Events :

971216:  Enlisted USNR for 4 years.

 981017:  NJP for violation of UCMJ, Article 134: Indecent assault and communicating indecent language on 980921.
         Award: Reduction to E-2. [Extracted from CO’s message and NAVPERS 1070/604 entry.]
981102:  Commanding Officer, Naval Air Station Joint Reserve Base, Willow Grove, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense - [sexual perversion]. Commanding Officer’s comments (verbatim): MSSA P_ [Applicant] was performing Annual Training with his reserve unit at Naval Air Station Keflavik, Iceland, when this misconduct occurred. Because of the nature of the misconduct and the fact that it was committed in a foreign country against a foreign national, MSSA P_ has brought discredit upon the United States Navy. I recommend that he be separated from the naval service with characterization of service as Other Than Honorable. MSSA P_ elected to submit statements to be included in the package to the Separation Authority. After 11 days, he still has not submitted a statement. Therefore, the package is being forwarded without it.

981113:  Commander, Naval Base, Norfolk authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the
commission of a serious offense - [sexual perversion].

981123:  Applicant discharged under other than honorable conditions due to the commission of a serious offense with an RE-4 reenlistment code.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981123 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

When the service of a member of the 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Article 134 of the UCMJ for indecent assault and communicating indecent language. Violations of Article 134 of the UCMJ for indecent language and indecent assault are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his discharge was improper and inequitable because:
•         It is an injustice for him “to continue to suffer the adverse consequences of his discharge.”
•         His “marks were very good.”
•         “…this was an isolated offense.”
•         He “faced racial discrimination.”
•         His “punishment was too severe compared to todays standards” and “worse than most people got for the same offense.”
•         That his “command abused its authority,” “did not follow discharge regulations” and that no administrative board was held.
The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that administrative discharge were inequitable or improper. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief on the basis of these issues is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any relevant post-service documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.

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), Change 18, effective
12 Dec 97 until 29 Mar 00, Article 1910-142 (formerly 3630605), SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE..

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, indecent assault or Article 134, indecent language, if adjudged at a Special or General Court-Martial.

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 .
E. 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.


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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