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

 ex-ADAA, USN
Docket No. ND00-00635

Applicant’s Request

The application for discharge review, received 000421, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010104.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The complainant refused to pursue charges and wouldn't cooperate with authorities.

2.  The Applicant is seeking to upgrade his separation discharge with a characterization of General (Under Honorable Conditions) to an Honorable discharge.  The applicant further contends that the complainant refused to pursue charges and would not cooperate with authorities.  He states in a letter dated 17 February 1999 that he was falsely accused.

The evidence shows that the U.S. Naval Criminal Investigative Service (Report), Applicant admitted to rape.

After reviewing all evidence we ask the Board to resolve any doubt in favor of the applicant.  We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed.

Documentation

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

Copy of DD Form 214
Letter from applicant dated February 17, 1999
Statement from applicant
Twenty-seven pages from applicant's service record
Statement from North Island Federal Credit Union dated December 5, 1998, and April 5, 1998
Letter from applicant dated June 8, 2000
Two transaction records from North Island Federal Credit Union dated October 1, 1998 and February 27, 1998
Letter to applicant from Alpena Community College dated March 29, 2000
Character reference from Pastor of Harvard Evangelical Covenant Church dated February 12, 1999
Letter from Pastor of East Tawas Assembly of God
Two page statement from applicant dated 14 Dec 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940725 - 950718	COG

Period of Service Under Review:

Date of Enlistment:  950719		Date of Discharge:  981026

Length of Service (years, months, days):

	Active:    03  03  08
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980616:	U. S. Naval Criminal Investigative Service report.  Complete report found on microfiche.

980616:	Violation of UCMJ, Article 120: Rape.

981002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981002:  	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.

981119:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer's comments (verbatim): Airman Apprentice (applicant) has admitted to NCIS Agents that he had committed the offense in question, and will therefore be separated in accordance with MILPERSMAN 1910-142.  I will separate him with a characterization of General (Under Honorable Conditions) as of 30 October 1998.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981026 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 states:  “The complainant refused to pursue charges and wouldn't cooperate with authorities.”  The NDRB found this issue irrelevant.  Documentary evidence shows that the applicant admitted to rape to the NIS.  Relief is denied.

The applicant’s second issue states:  “The Applicant is seeking to upgrade his separation discharge with a characterization of General (Under Honorable Conditions) to an Honorable discharge.  The applicant further contends that the complainant refused to pursue charges and would not cooperate with authorities.  He states in a letter dated 17 February 1999 that he was falsely accused.”  The NDRB found that the applicant admitted to rape in a statement to the NIS.  The NDRB found no impropriety or inequity in the discharge.  Relief is denied.

The applicant’s third issue from the VFW states:  “The evidence shows that the U.S. Naval Criminal Investigative Service (Report), Applicant admitted to rape.”  The NDRB found this statement reinforces the fact that the applicant’s misconduct warranted separation.  Relief is denied.

The applicant’s fourth issue states:  “After reviewing all evidence we ask the Board to resolve any doubt in favor of the applicant.  We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed.”  The NDRB found no procedural errors or inequities in the applicant’s discharge.  Relief is not warranted.

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 29 March 2000, 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 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