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

 ex-BMSN, USN
Docket No. ND00-00786

Applicant’s Request

The application for discharge review, received 000531, 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.  Discharged in absentia.

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 02AUG90 TO 20JUN93".  The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I am respectfully requesting my secondary discharge "in which was supposed to be Honorable" but is listed as OTH should and could please be changed to Honorable, for the primary reason I served my country with little or absolutely no complaint whatsoever.  I simply ask that the board take into consideration that I never wanted to leave the military the way I did and if I could change it I would, but since you or I can not than I simply ask that my discharge be changed/upgraded to Honorable in which according to my contract in which I am entitled to!  I thank you on behalf of my family and God almighty.  I just want to add if I could I would be allowed to serve in the Navy once again I know I would do it differently and with little or no mistakes.  I just ask to take the good with bad and that everyone makes mistakes but I know in my heart & soul God has forgiven me.  I just ask you to do the right thing.  God bless you all.

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:   USNR 		900802 - 930620	HON
	Inactive: USNR (DEP)	900115 - 900801	COG

Period of Service Under Review:

Date of Enlistment:  930621		Date of Discharge:  950608

Length of Service (years, months, days):

	Active:    01  11  18
	Inactive:  None

Age at Entry:  24			Years Contracted:  3

Education Level:  12			AFQT:  30

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.20 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC, SASM

Days of Unauthorized Absence:  337 (IHCA)

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930621:	Reenlisted USN at Long Beach for 3 years.

940706:	Applicant delivered to civilian authorities on charges of sodomy, forcible lewd act upon a child.

941209:	Civil Conviction: violation of California Penal Code Section 288(B) (3 counts) - forcible lewd acts upon a child under the age of 14 years.
Sentence: California State Prison for 6 years.  Parole conditions and terms to be determined at a later date.

950313:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and civil conviction.  [Unsigned and undated by applicant.]

UNDATED:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Undated and unsigned by applicant.]

950509:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and civil conviction.  Commanding officer's comments (verbatim): BMSN (applicant) was afforded thirty (30) working days commencing 21 March 1995 to respond to this Separation Action as indicated in enclosure (3).  Acknowledgement of receipt of the Notification of Administrative Board Procedure proposed Action and Statement of Awareness and request for Waiver of Privileges on PS Form 3811 is attached to enclosure (5).  Based on the information contained in enclosure (1) through (4), it is recommended that BMSN (applicant) be discharged with an Other Than Honorable Conditions Discharge by reason of misconduct due to commission of a serious offense and civil conviction.

950601:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 950608, in absentia, under other than honorable conditions for misconduct due to civil conviction (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 response to the applicant’s issue, to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  The Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members.  Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country.  It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges.  The applicant's service is accurately characterized as having been performed under other than honorable conditions.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

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