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

    

ex-OSSN, USN
Docket No. ND99-01050

Applicant’s Request

The application for discharge review, received 990802, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read:  “NAVMILPERSMAN, Article 1910-142” vice “MILPERSMAN 3630600”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel that my discharge was inequitable because it was based on one incident in 8 years of service with no adverse action.

2.  I plead guilty to this offense because I wanted to save my family the hardship of a lengthy trial and possibly a worst brig sentence.  My wife and I made the conscience decision to take a shorter brig sentence.  If I would leave the military quietly.  My understanding was I would receive no worst than a general discharge.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 			890718 - 930715	HON
Inactive: USNR (DEP)	871024 - 880613	ELS
               USNR (DEP)	881128 - 890717	COG

Period of Service Under Review:

Date of Enlistment:  930716		Date of Discharge:  981005

Length of Service (years, months, days):

	Active:    05  02  20
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  59

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (2)	Behavior:  4.00 (2)		OTA:  4.00	4.0 evals
Performance:  3.50 (2)	Behavior:  4.00 (2)		OTA:  3.64	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  CAR, NUC, NER, GCM (2), NDSM, SASM, SSDR (2), KLM, Letter of Commenation

Days of Unauthorized Absence:  None

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:

980611:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Specification: Derelict in the performance of duties on 31Jan98.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Indecent assault upon Storekeeper Third Class, a person not his wife by placing his hands inside her uniform and fondling her breasts, with intent to gratify his lust and sexual desire on 31Jan98.
	Findings:  to Charge I and II specifications thereunder, guilty.  
	Sentence:  Confinement for 40 days, reduction to OSSN.
	CA 980617: Sentence approved and ordered executed.

980709:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980709:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980714:	Applicant released from confinement.

980714:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

980903:	Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

980915:	BUPERS 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 981005 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 and equitable (C and D).

In the applicant’s first issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant  relief on the basis of this issue.

The separation process was in strict compliance with the Naval Military Personnel Manual. The applicant was processed for separation by reason of misconduct due to the commission of a serious offense.  The applicant’s misconduct, warranting separation for misconduct due to the commission of a serious offense, is clearly documented in the service record.  On 9 July 1998, the applicant was advised that he was being recommended for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  On the same day the applicant was advised of his rights.  He summarily waived these rights except the right to obtain copies of the documents used to support the basis for the separation.  If the applicant did not understand an aspect of his court-martial or his discharge process, the applicant should have asked the question at that time.  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby.  The Board’s opinion is that the applicant was given all appropriate due process, and relief is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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, an error or injustice 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)
A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION 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