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NAVY | DRB | 2005_Navy | ND0501466
Original file (ND0501466.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY


ex-BUC, USN
Docket No. ND05-01466

Applicant’s Request
The application for discharge review was received on 20050907. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060525. 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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The discharge was inequitable because it was based on one isolated incident within 112 months of service with no other adverse action. In my view there was no doubt an infraction committed on my behalf and I rightly stood up and admitted full fault, however with the exemplary service annotated within my record up to that point in my career would confirm a honorable discharge should have been granted.”
Representative submitted no issues.
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
 Performance Appraisal Report dtd September 2, 2005, (3 pgs)
Performance Appraisal Report dtd September 2, 2004, (3 pgs)
Performance Appraisal Report dtd March 24, 2003, (3 pgs)
Letter from J_ C_ dtd June 24, 2002
Confidential Transcript dtd February 1, 2005
Letter of Appreciation dtd June 26, 1989
Outstanding Performance Letter dtd June 13, 1989
Meritorious Unit Commendation Citation
Letter of Appreciation dtd January 12, 1990
Letter of Appreciation dtd January 5, 1990
Letter of Commendation forwarding ltr, dtd March 30, 1992/Personal Congratulation Letter dtd April 15, 1992
Letter of Commendation
Letter of Commendation deliverance ltr dtd June 28, 1991
Message from AMEMBASSY MOSCOW dtd June 21, 1991
Applicant’s DD Form 214 (2)
Enlisted Performance Evaluation Reports (9 pgs)
Foreign Service Oral Assessment Congratulation Letter dtd August 26, 2005 (3 pgs)
Interoffice Memorandum dtd June 9, 2005 (2 pgs)
Interoffice Memorandum dtd July 6, 2005
Interoffice Memorandum dtd June 24 2002
Performance Appraisal Report dtd October 2, 2005, (3 pgs)
Certificate of Completion for Graphisoft, dtd November 11, 2005
Confidential Transcript
Exam Analysis from BOMI Institute
Letter from J_ C_ dtd, June 24, 2004
Special Report from J_ C_, dtd April 30, 2002
Field Operation Performance Appraisal dtd October 10, 2001 (3 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19771116 – 19780830               COG
         Active: USN                        19780831 – 19840606               HON
 Active: USN                        19840607 – 19910808               HON
         
Period of Service Under Review :
Date of Enlistment: 19910809             Date of Discharge: 19931118

 Length of Service (years, months, days):

         Active: 02 03 09
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 31

 Years Contracted: 3

Education Level: 12                                 AFQT: 80

 Highest Rate: BUC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (2)              Behavior: 3.0 (3)                 OTA: 3 .30

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Expeditionary Medal, Humanitarian Service Medal, National Defense Service Medal, Second Good Conduct Award period ending 920606, Meritorious Unit Commendation, Navy & Marine Corps Oversea Service Ribbon (5), Sea Service Deployment Ribbon (4), Navy “E” Ribbon, Navy Rifle Marksmanship Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

910809:  Reenlisted this date for a term of 3 years.

930706:  Department of Navy Incident/Complaint Report of Investigation: Investigative Status: A_ (Applicant) and O_ admitted to fraternization and cohabitation during the period of October 1992 through January 1993. O_ stated the child she delivered was fathered by A_ (Applicant). A_ (Applicant) stated that the child could be his. Personnel in the unit stated moral was effected by the relationship between A_ (Applicant) and O_. A_ (Applicant) and O_ denies favoritism in the workplace. This case is forwarded to SUBASE legal for appropriate disposition.

930730:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order.
 Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction for 60 days. No indication of appeal in the record.
930730:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Department of Navy Incident/Complaint Report of Investigation, case control number 24JUN93-68436-456-4F2, fro violation of the UCMJ, Article 92 (Orders Violation).

930804:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
930902:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense as evidenced by Department of Navy Incident/Complaint Report of Investigation, case control number 24JUN93-68436-456-4F2, for violation of the UCMJ, Article 92 , that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
930920:  Letter of Deficiency and Petition for suspended separation ICO BUC B_ K. A_ (Applicant), USN, from LT R_ W. R_, JAGC, USN, Counsel for Respondent to Chief, Bureau of Naval Personnel (PERS-83) VIA Commanding Officer, Naval Submarine Base, Bangor.

931021:  Commanding Officer, Naval Submarine Base, Bangor recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Concur most strongly with separation and disagree ardently with characterization of discharge as general. The Board’s finding of fraternization very much speaks for itself. Respondent brought great discredit upon the naval service and adversely affected good order and discipline with this command. He engaged in a sexual relationship with a female subordinate who was in his direct chain of command. There was a child born out of wedlock during this relationship. Respondent’s illicit behavior goes to the very core of Navy fraternization policy and illustrates the impairment of military decorum which our fraternization policy was designed to counter. Respondent is of dissolute morals and has no place in the naval service. His disgraceful and sordid behavior must not be rewarded with a general discharge. I most strongly recommend respondent be separated with an other than honorable discharge. additionally, in response to the letter of deficiency submitted by counsel for the respondent, it is without merit. Counsel for the respondent made no objection nor conducted voir dire to determine any possible impropriety. There is no basis upon which to impugn the integrity of the proceeding.”

931105:  B UPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19931118 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). 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).

The Applicant contends that his discharge is inequitable in that “one isolated incident within 112 months of service with no other adverse action” should not outweigh his otherwise exemplary service. 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. A general 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 violation of Article 92 of the UCMJ. The Board notes that the “one isolated incident” was an unduly familiar sexual relationship with a junior sailor that lasted at least 5 months. The junior sailor was assigned in his chain of command and the relationship resulted in the birth of a child. The Applicant’s rank, chief petty officer, and leadership responsibilities are contributing factors to the seriousness of this offense. The Commanding Officer’s recommendation for discharge stated, in part, that this incident “brought great discredit upon the naval service and adversely affected good order and discipline.” An Administrative Board, based upon the preponderance of the evidence, and by unanimous vote, found that the Applicant was guilty of fraternization. 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 short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided 28 pages of post service employment documentation as documentation of post-service accomplishments. The documentation provided is not sufficient to mitigate the misconduct that resulted in the characterization of discharge. Therefore, relief will not be 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey written order.
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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