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NAVY | DRB | 2006_Navy | ND0600163
Original file (ND0600163.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MRFR, USN
Docket No. ND06-00163

Applicant ’s Request
The application for discharge review was received on 20051103 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged t o attend a personal appearance hearing at the Washington Navy Yard, Washington D.C. The Applicant did not respond to the acknowledgment letter.

Decision

A documentary discharge review was conducted in Washington, D.C. on 2006092 6 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no im propriety 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 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:
“ Discharge status based on erroneous charges & guilty plea as recommended by Navy attorney. Charges later dropped, but plea affected discharge status. As option to remain enlisted was available, discharge should be honorable. Letters of commendation reflect honorable service with no adverse action prior to one isolated incident which Navy deemed non-prosecutable after-the-fact. ”
Documentation
Only the service and medical record s were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19891121 – 19900305      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900306              Date of Discharge: 19921130

Length of Service (years, months, days):

          Active: 0 2 0 8 25 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              16 7 day s

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 64

Highest Rate: MR 3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (2 )                        Behavior: 3 . 5 ( 3 )                  OTA: 3.9 0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ): National Defense Service Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900807 :  NJP for violation of UCMJ, Article 86: On or about 1045, 90Aug02, mbr did, without authority, absent himself from his organization and did remain to be so absent until on or about 1600, 90Aug02.
         Award: Forfeiture of $ 5 0 per month for 1 month. No indication of appeal in the record.
920401 :  General Court-Martial.
          Charge I: violation of the UCMJ, Article 120:
Specification: Rape of J_ G_, USN, on 8 March 1992. Plea : Not guilty, but guilty of a violation Article 134. Finding : Withdrawn, but guilty of a violation of Article 134.
          Charge II: violation of the UCMJ, Article 125:
Specification: Forcible sodomy on BMSN J_ G_, USN, on 8 March 1992. Plea : Guilty. Finding : Guilty.
 Charge III: violation of the UCMJ, Article 134:
Specification: Commission of an indecent act with BMSN J_ G_, USN, on 8 March 1992. Plea : Not Guilty. Finding : Withdrawn.
          Sentence: Forfeiture of all pay and allowances, confinement for 12 months, reduction to E- 1 and to be discharged from the naval service with a Bad Conduct Discharge.
         CA action 920910 : Sentence approved and will be executed , but the execution of that part of the sentence extending to a bad conduct discharge and that part of the sentence extending to confinement in excess of 200 days is suspended for a period of one year, at which time, unless t he suspension is sooner vacated, t he suspended part of the sentence will be remitted without further action .
920401:  Applicant to confinement.

920915:  Applicant from confinement.

 920917:  Applicant found physically qualified for release from active duty.

 921029 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable conditions by reason of misconduct due to commission of serious offenses – indecent assault and sodomy.
921029 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
921103 :  Commanding Officer, Transient Personnel Unit, Naval Station, Charleston, SC , re commended discharge under other than honorable conditions by reason of convenience of the government due to Misconduct due to Commission of Serious Offenses. Commanding Officer’s comments: “ Recommend MRFR M_ L. M_( Applicant ), U.S. Navy be discharged from the Naval Service by reason of Misconduct due to Commission of Serious Offenses. MRFR M_( Applicant )’s behavior and conduct is clearly contrary to basi c standards of good order and discipline and prejudicial to morale. I strongly recommend MRFR M_( Applicant ) be discharged as soon as possible with a characterization of Other Than Honorable .”
921118 :  BUPERS directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

921229:  Commander, Service Force SIXTH Fleet , forwarded First Endorsement from CO, TPU , ltr to BUPERS. Commander’s Comments: “Previously as the GCM Convening Authority in this case, I suspended the Bad Conduct Discharge for one year. However, since Fireman M_( Applicant ) does not object to this discharge, I concur with this action. However, I do not concur with an Other Than Honorable Discharge.
         Recommend discharge with a General type Discharge under Honorable Conditions.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19921130 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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 implies that his discharge is inequitable because “an option to remain was available” and that he had letters of commendation which reflected his honorable service. The Applicant also contends that aside from the isolated incident which precipitated his discharge, he had no other adverse action during the period under review. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 on 19900807 for violation of Article 86 of the UCMJ. The Applicant was also convicted at general court-martial on 19920401 for violations of Articles 125, forcible sodomy, and 134, commission of an indecent act. The Applicant’s violations of Articles 125 and 134 of the UCMJ are serious offenses, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. 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 on multiple occasions 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 is inequitable because it is based on erroneous charges and a guilty plea that was based on the advice of counsel. In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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. 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. 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), effective 15 Aug 91 until
04 Mar 93, 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 125, sodomy, by force or without consent, or Article 134, indecent acts with another.

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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