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

ex-MS2, USN
Docket No. ND99-00471

Applicant’s Request

The application for discharge review, received 990217, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The applicant requested a documentary record discharge review.  The applicant listed a private attorney as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks should read:  “CONTINIOUS HONORABLE ACTIVE SERVICE FROM 831123 UNTIL 941222”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Whether the facts of this case support a general discharge and a characterization of misconduct.

2.  Whether a vote to retain by an officer board was overturned by civilian authority on grounds of political correctness and not on the facts or law.

3.  Whether a vote to retain by an officer selection board was overturned without a basis in law or fact.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Supplemental statement signed by the attorney
Thirty-eight pages from applicant's service record
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USN			831123 - 910114	HON
		   USN			910115 - 930311	HON
	  	   USN			930312 - 941222	HON
	Inactive: USNR (DEP)	831104 - 831122	COG

Period of Service Under Review:

Date of Enlistment:  941223		Date of Discharge:  970718

Length of Service (years, months, days):

	Active:    02  06  26
	Inactive:  None

Age at Entry:  30			Years Contracted:  3

Education Level:  12			AFQT:  29

Highest Rate:  MS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  4.00	4.0 EVALS
Performance:  4.00 (4)	Behavior:  2.25 (4)		OTA:  3.54	5.0 EVALS

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, GCM (3), SSDR (2), NDSM, SASM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

961211:	NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey a lawful order or regulation, to wit:  the Navy's Sexual Harassment Instruction, violation of UCMJ Article 128 (2 specs): Assault with intent to gratify sexual desires, violation of UCMJ Article 134: Indecent language of a nature to bring discredit upon the armed forces.
	Award:  Forfeiture of $100 per month for 1 month, extra duty for 45 days, reduction to MS2.  No indication of appeal in the record.

970127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970127:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970228:	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 retention.

970429:	Commanding officer agreed with the Administrative Discharge Board's recommendation to retain applicant.  Commanding officer’s comments  (verbatim): 

970609:	CNP forwarded recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs) to discharge applicant general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
 
970612:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

970618:	BUPERS directed the applicant's discharge general (under 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 970718 general (under 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 and equitable (C and D).

The applicant’s first issue requested the NDRB to review the applicant’s case and determine whether the facts of this case support a general discharge and a characterization of misconduct.  The NDRB reviewed the applicant’s case and found no impropriety or inequity in the discharge.  A general discharge with a characterization of misconduct was, in fact, proper and equitable.  Relief not warranted.

The applicant’s second issue requested the NDRB review the applicant’s discharge and determine whether a vote to retain by an officer board was overturned by civilian authority on grounds of political correctness and not on the facts or law.  The NDRB found no impropriety in the applicant’s discharge.  Specifically, although the Administrative Board and the Commanding Officer recommended retention for the applicant, and the Bureau of Naval Personnel’s order to discharge was proper.  There is no evidence to suggest the reason for discharge was anything other than the applicant’s admitted misconduct.  Relief denied.

The applicant’s third issue questioned whether a vote to retain by an officer selection board was overturned without a basis in law or fact.  The vote to retain by the Administrative Discharge Board was forwarded as the Admin Board’s recommendation to the Commanding Officer.  The Commanding Officer made his recommendation to BUPERS.  BUPERS made the final determination on the proper disposition of the applicant’s case.  The discharge was proper and equitable.  Relief not warranted.   

The applicant requested the reason for discharge to change to Secretarial Authority.  The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023