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

 ex-MIDN, USN
Docket No. ND00-00019

Applicant’s Request

The application for discharge review, received 991007, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000522.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in my 31 months of naval service.  During my 2.5 years at the United States Naval Academy I was consistently ranked as an above average military performer on my fitness reports, maintained a 2.7 cumulative GPA, and played on the varsity football team for two years.

2.  My discharge was inequitable because the female midshipman involved in the incident, L_ K_, was allowed to remain at the Naval Academy without punishment, although guilty of the same UCMJ violations.  Furthermore, she entered her first class academic year at the Academy this fall, despite being found guilty of other major Naval Academy conduct offenses that occurred after and were unrelated to, the circumstances that brought about my discharge.  In addition, prior to the incident MIDN K_ had an improper sexual relationship with a 1/c MIDN at the beginning of her plebe year.  Interestingly, he was punished for it and she was not.

3.  My discharge was inequitable because it resulted in large part from the Naval Academy's desire to avoid bad publicity at the expense of justice.  MIDN K_'s father had made threats to go public if the other male Midshipmen and I were not dealt with in a way that he felt proper.  This contributed to the reasons why I was forced to resign from the Academy and given an OTH discharge, while MDN K_ remained, even though, as previously stated, she was guilty of the same violations of the UCMJ.

4.  In light of the aforementioned issues, the Department of the Navy waived the fee of $60,660.24 that I was originally ordered to pay upon resignation from the Academy.  This fee was assigned as recoupment for the price of my education, and was rescinded effective 4 December 1998.

Documentation

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

Applicant's Personal Statement
USC Completed Course Summary
Applicant's Law School Admission Test dtd 06/14/99
USC Dean's List Certificate for Fall Semester, 1998
Oath of Office United States Naval Academy dtd 30 Jun 95
House of Representative, R_ P_'s ltr to Applicant Jan 3, 1995 advising applicant of his selection as a nominee for appointment to the Naval Academy
Letter of Congratulation for football endeavors from R_ R. S_, dtd Oct 27, 1994
Letter of Admission to Tulane Law School dtd Feb 21, 2000
Letter to Parents on Applicant's selection as 1989 Pop Warner National Scholar-Athlete dtd Mar 22, 1990
Agreement to Serve and Degree Requirements for all Midshipmen who are Citizens or Nationals of the United States, signed by applicant on 5/1/95
Offer of appointment from Superintendent, Naval Academy dtd 3 Feb 95
Invitation to tour academic/athletic facilities from Head Football Coach, Naval Academy dtd May 5, 1994
Letter of Recommendation to attend Naval Academy from T_ P_ High School dtd Aug 10, 1994
Applicant's Personal Statement undtd
Applicant's Resume
Naval Academy's ltr to Applicant concerning discharge and recoupment of educational cost dtd 5 Feb 98
Copy of DD Form 214 (2 copies)
Discharge Authority (ASN(M&RA)) dtd Jan 27, 1998
Copy of Applicant's ID
Naval Academy's ltr to Applicant rescinding monetary recoupment dtd 28 Dec 98
United States Naval Academy transcript Addendum dtd 17 Aug 99
Naval Academy's ltr to Applicant's Mother dtd Jul 2, 1999

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  None
Period of Service Under Review:

Oath of Office to Naval Academy:  950630

Date of Discharge from Naval Academy:  980205

Length in School (years, months, days):  2 years, seven months, 5 days

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  N/A

Highest Rate:  MIDN

Performance Evaluation Averages:  School performance available for Board review.

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

97XXXX:	Charges preferred to General court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 133:  at the Super 8 Motel, Annapolis, MD on or about 5 Apr 1997, wrongfully engage in sexual intercourse with Midshipman Third Class L_ J_ K_, an underclassman, in the presence of other persons, knowing that she was intoxicated, which, under the circumstances, constituted conduct unbecoming an officer and a gentleman; violation of UCMJ, Article 134: at the Super 8 Motel, Annapolis, MD on or about 5 April 1997, wrongfully commit an indecent act with Midshipman Third Class L_ J_ K_ by having sexual intercourse with her in the presence of others.

980112:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request.  The applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 133 and Article 134.  The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

980115:	Superintendent, United States Naval Academy recommended that applicant be discharged with an other than honorable condition discharge, as requested by the member.  Additionally, it was recommended that the applicant be required to repay the government $60,660.24 for the cost of his education at the Naval Academy.

980121:	NIS Report:  The AACPD investigation, as well as this investigation, did not substantiate Midshipman K_’s allegation of rape by (Applicant), but did substantiate an indecent assault.

980127:	BUPERS recommended to the Secretary of the Navy applicant's resignation from the Naval Academy be accepted and that he be discharged under other than honorable conditions and that he be required to reimburse the government in the amount of $60,660.24.

980129:	ASN(M&RA), approved the request for an administrative separation in lieu of a trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980205 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found that the applicant’s offenses were very serious and overshadowed any positive aspects of his time at the Naval Academy.  The applicant 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.

In response to the applicant’s issue 2, the Board found these statements irrelevant, including the victim’s sexual relationships prior to or after the incident.  The applicant admitted that he was guilty of violating Article 133 and 134 of the Uniform Code of Military Justice.  He admitted this voluntarily and free of duress and under advice from counsel.  Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.  The Board will not grant relief on the basis of this issue.

The Board strongly disagrees with the applicant’s statement in issue 3 that he “was forced to resign form the Academy and given an OTH discharge.”  The applicant submitted a request for Administrative discharge under other than honorable conditions in lieu of trial by court-martial after charges were preferred against him to a General court-martial.  The applicant could have received a Bad Conduct Discharge or a Dishonorable Discharge as a result of a General court-martial inclusive of a felony conviction.  Instead, the Navy accepted the request for administrative discharge under other than honorable conditions in lieu of trial by court martial and an admission of guilt of all charges preferred against him.  

In the applicant’s issue 4, although the U.S. Navy may have waived the financial recoupment of the cost of the applicant’s education, this does not change the propriety or the equity of the discharge.  The Board found that the discharge was both proper and equitable.  No relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 1997 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g. 134, Indecent acts with another] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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 St SE Rm 309
		Washington, D.C.  20374-5023