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

 ex-MMFN, USN
Docket No. ND00-00411
 
Applicant’s Request

The application for discharge review, received 000210, 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 000908.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in 13 years of faithful service with no disciplinary actions.

2.  The discharge is improper because there was no evidence proven only circumstantial based on accusations by ex wife, friends etc.

3.  If two parties were allegedly involved in this why was only one individual discharged and the other proven not guilty by not enough evidence to be taken to court martial

4.  I feel that I was persuaded into accepting & degradable discharge due to harassment by ex-wife & command.

5.  I was told that I couldn't request court martial due to my ship co has presidence by & being a sea going vessel which lead to my excepting (NJP).

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			831028 - 880605	HON
		   USN			880606 - 910922	HON
	Inactive: USNR (DEP)	831021 - 831027	COG

Period of Service Under Review:

Date of Enlistment:  910923		Date of Discharge:  970702

Length of Service (years, months, days):

	Active:    05  09  10
	Inactive:  None

Age at Entry:  28			Years Contracted:  5 (16 months extension)

Education Level:  12			AFQT:  20

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)	Behavior:  4.00 (4)		OTA:  4.00	4.0 evals
Performance:  3.50 (2)	Behavior:  2.00 (2)		OTA:  3.07	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  KLM (Kuwait), Letter of Commendation (3), NAM (3), SSDR (3), BER, SASM with Bronze Star, KLM (Saudi)

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 3630605.

Chronological Listing of Significant Service Events:

961212:	NJP for violation of UCMJ, Article 107: False official statement on 27Nov96 with intent to deceive, make to CAPT T_______, to wit:  “I am not having any relationship with SK3 H_____”, violation of UCMJ Article 134: Adultery from Oct94 to Dec95, by wrongful sexual intercourse with a married woman not his wife.
	Award:  Forfeiture of $825 per month for 2 months, restriction and extra duty for 45 days, reduction to MM2.  Appealed 961220, appeal denied 961227.

961230:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970401:	Applicant advised of his rights and having consulted 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.

970518:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): MM1 (applicant) went to XOI, 96JUL23, for Article 107, false official statement, concerning a false address he put on his leave chit and Article 134, adultery with SK3 H_, USN.  MM1 (applicant's), wife (Y_ W_) wrote a letter to me on 96JUL12, concerning the alleged affair.  MM1 (applicant's) case was dismissed at XOI based on his denial of the charges and evidence presented.
On 96NOV22, SH3 H_, SK3 H_'s husband, stationed at TPU Naval Station, San Diego, contacted LNCS(AW) W_, USS MCKEE, and informed her that MM1 (applicant) was at Balboa Hospital where SH3 H_'s wife (SK3 H_) was delivering their child.  MM1 (applicant) informed SH3 H_ that the child was his MM1 (applicant)) and that he assumed SH3 H_ was aware of their (MM1 (applicant) and SK3 H_)’s relationship.  MM1 (applicant) went to CO's NJP on board USS MCKEE (AS-41) 96NOV27, for Article 107, false official statement to XO, USS MCKEE, regarding his alleged affair with SK3 H_ and the adultery charge.  His case was dismissed at NJP based on MMl (applicant's) denial of the charges and evidence presented.  I warned MM1 (applicant) at his mast not to put himself in a situation of perception of adultery again.

On 96DEC05, SH3 H_ contacted LNCS(AW) W_, USS MCKEE, and informed her that MM1 (applicant) was driving his wife's (SK3 H_) car.  SH3 H_ contacted SDPD to report the car stolen, but was informed that the car could not be reported stolen due to the fact that his wife (SK3 H_) had given MM1 (applicant) permission to drive the car.  SH3 H_ entered the apartment and found military uniforms with MM1 (applicant's) name on them (SH3 H_'s) name was still on the lease).  SH3 H_ turned the uniforms over to USS MCKEE.

MM1 (applicant) went back to NJP 96DEC12, for Article 107, false official statement to me during his last NJP regarding his affair with SK3 H_ and adultery with SK3 H_.  I found MM1 (applicant) guilty of the offenses and recommended administrative separation due to commission of serious offenses.

MM1 (applicant) first elected an administrative separation board which was scheduled for 97MAR27.  On the morning of the board, prior to the proceedings, LNCS(AW) W_, USS MCKEE, received a phone call from Mrs. W_ concerning an alleged assault by MM2 (applicant) and SK3 H_ earlier that morning.  Mrs. W_ was apparently outside of SK3 H_'s apartment waiting for MM2 (applicant) and SK3 H_ to exit so that she could video tape them leaving the apartment together.  While Mrs. W_ was waiting, SK3 H_ came out of the apartment and got into her vehicle and then MM2 (applicant) came out of the apartment and entered SK3 H_'s car.  Mrs. W_ followed the vehicle with SK3 H_ and MM2 (applicant).  SK3 H_ stopped the vehicle, got out and went to Mrs. W_ car and grabbed Mrs.W_ by the hair and hit her in the head.  MM2 (applicant) entered the vehicle from the passenger side and took the video camera.  Mrs. W_ called 911 and made a police report concerning the assault and robbery of her video camera.  MM2 (applicant) board was postponed due to SDPD needing to interview him concerning the alleged incident with Mrs. W_ and SK3 H_.

MM2 (applicant) signed a new Statement of Awareness 97APR01, waiving his administrative separation board and was placed on administrative leave.  I strongly recommend MM2 (applicant's) immediate separation from the naval service with an Other than Honorable discharge.

970604:	Commander Submarine Force, U.S. Pacific Fleet 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 970702 under other than honorable conditions for misconduct due to commission of a serious offense (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 although the applicant may have had one NJP, this NJP was serious enough to overshadow the good the applicant had accomplished during this enlistment.  The applicant was found guilty at CO’s NJP of making a false official statement to the Commanding Officer and Adultery, offenses triable by court martial.  The applicant’s service is accurately characterized as having been served in other than honorable conditions.

In the applicant’s issue 2, the Board disagrees with the applicant’s statement that the “discharge is improper because there is no evidence proven.”  There was a preponderance of evidence, which is the only requirement to bring the applicant to CO’s NJP and then administratively separate him from the Navy.  No relief will be granted based on this issue. 

In the applicant’s issue 3, the Board found that the applicant’s Commanding Officer has the authority to recommend administrative separation for any individual in his command who had committed misconduct.  In the applicant’s case, the applicant committed misconduct that was serious enough to warrant separation from the Navy.  The GCMCA directed the applicant be separated from the Navy with an other than honorable characterization.  In addition, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.  No relief warranted based on this issue.

In response to the applicant’s issue 4, there is no evidence nor does the applicant present any evidence to prove that his rights were prejudiced.  No relief will be granted based on this issue. 
 
The applicant is referring to his election of rights before CO’s NJP in issue 5.  Because the applicant was attached to the USS MCKEE (AS 41), the applicant did not have the right to elect a court martial in lieu of CO’s NJP.  The applicant did not have a choice in electing CO’s NJP because he was attached to or embarked in a vessel.  This is a non-decisional issue for the Board.

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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement, Article 134, adultery if adjudged at a Special or General Court 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023