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

ex-AK2, USN
Docket No. ND00-00845

Applicant’s Request

The application for discharge review, received 000626, 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 010125.  After a thorough review of the records, 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.  Change of venue was not requested.  The jury that heard my case consisted of 3 officers from my command (HC-4).
2.  It was later revealed to myself by AZC(AW) S_ D_ HC4 Maintenance Admin LCPO, that the Monday prior to the start of my trial, that LCDR S_ H_ HC-4 Maintenance Officer stated "The trial is this week, and he will be found guilty right LT"s” during the weekly department head pass down.  Two members of my jury were present at this meeting.  With this in their minds there is no way I received a fair and impartial trial.
3.  Ineffective counsel, on the basis that even though on numerous occasions I presented facts to my legal counsel (LT. J_) that there was a conspiracy to get rid of me (preferably out of the Navy) he never once pursued this theory.  Even when testimony against me was faltering, i.e., when AMS1 G_ stated that I chased a female squadron member around our tool room.  The alleged victim never stated that I chased her around the tool room.
4.  Perjury was committed by AMS1 G_, and AK1(AW) A_, but was never pursued by my legal counsel.
5.  AK1(AW) A_ medical history was not brought into evidence which would have played a major part in determining my innocence as it was recorded that she was in fear of her own husband.
6.  There was never sufficient proof to the fact that I touched AK1(AW) A_ in the manner she stated.  She never once followed the procedures as stated in the sexual harassment directives.  No witness ever saw me sexually harass her.
7.  Respectfully Request full review of my case, reinstated and afforded the opportunity to retire with full benefits.

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			790615 - 821014	HON
		   USN			821015 - 880727	HON
		   USN			880728 - 910430	HON
		   USN			910501 - 960925	HON
	Inactive: USNR (DEP)	790412 - 790614	COG

Period of Service Under Review:

Date of Enlistment:  960926		Date of Discharge:  980330

Length of Service (years, months, days):

	Active:    01  06  05
	Inactive:  None

Age at Entry:  35			Years Contracted:  6

Education Level:  10 GED		AFQT:  44

Highest Rate:  AKC

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.29	Enlisted evals
Performance:  1.00 (2)	Behavior:  2.00 (2)				NCO evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NESM, NER (4), GCM (3), SSDR (5), NAM, JMU, Flag Letter Commendation, NATO, NUC (2), NDSM, SASM (2), KLM, MUC, OSR (4), AFSM

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:

970718:	Applicant admitted to hospital.

970728:	Applicant discharged from hospital.

970807:	Applicant seen by on-call psychiatrist 18Jul97.  Diagnosis: Axis I: Adjustment disorder with depressed mood, resolved.  Axis II: Paranoid personality traits.  Recommendations: 1. ...fit for duty.  Strongly recommend early retirement.  2. Regular follow-up with Dr L_ is required.  3.  Patient is not homicidal or suicidal.  He is entirely responsible for his actions....

971107:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 134:
	Specification: Wrongfully communicate to Aviation Structural Mechanic (Structures) First Class and Aviation Storekeeper First Class a threat, to wit: "I am going to make her life hell.  I will call her detailer and make sure she gets the shittiest orders possible," on 7Jul97.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Fail to obey a lawful general regulation, to wit: SECNAV Instruction 5300.26B, dated 6 January 1993, by sexually harassing Aviation Storekeeper First Class by placing his hand on her knee and stroking her hand with his hand in an improper manner, on divers occasions from October 1996 to June 1997.
	Charge III: violation of the UCMJ, Article 80:
	Specification: Attempt to violate a lawful general order, to wit: OPNAVINST 5370.2A dated 14 March 1994, by asking AN, out on a date on or about November 1996.
	Findings: to Charges and specifications thereunder, guilty.
	Sentence: Reprimand, restriction for 30 days, reduction to AK2.
	CA 971210:  Sentence approved and ordered executed.

971126:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by: (1) your special court-martial conviction of 6 November 1997 for the offenses of violation of UCMJ Articles 80 - attempted failure to obey a lawful general order (attempted fraternization), 92 - failure to obey a lawful general order (sexual harassment), and 134 - Communicating a threat; and (2) LCDR B_'s 15 July 1997 investigation indicting violations of UCMJ Articles 107 - False official statements, and 121 - Larceny by false pretense.

971203:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971205:	Defense counsel's letter of request for clemency.

971210:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions, and recommended suspended separation for 12 months.  Recommended retention.

971211:	Defense counsel for the applicant requested 30 additional days to file the letter of deficiency.  Request denied.

971218:	Defense counsel's letter of deficiency.  Entire letter found on microfiche.

980115:	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): I concur with the Administrative Board's recommendation for separation, but I recommend disapproval of the recommendation for the 12 month suspension of separation.
On 30 December 1994, during his previous enlistment, AK2(AW/SW) (applicant) was found guilty at Captain's Mast for Article 107 (False Official Statements), and Article 123 (Forgery).  As a result he was removed from the Navy Counselor rating, received a punitive letter of reprimand, and was placed on Petty Officer Quality Control. As a result of numerous incidents in this command of inappropriate behavior dealing with his subordinates, AKC (applicant) received numerous counseling sessions from his superiors on his actions within his work center.  His repeated lack of rehabilitation after these "wake ups" resulted in my personally counseling him.  Three days later, he requested leave to see an unconfirmed sick father back in the states.  Before he boarded the plane, he had suicidal ideations which placed him in the hospital.  An investigation was initiated into his numerous problem areas, which revealed many severe incidents. On 7 November 1997, by a Special Court-Martial, AK2 (AW/SW) (applicant) was found guilty of Article 92 (Failure to Obey a Lawful General Regulation: sexual harassment), Article 80 (Attempts: fraternization) and Article 134 (Communicating a Threat), all with direct subordinates in his chain of command.
Due to the severity of the offense, I cannot place him back within my chain of command.  He is of no value to my squadron.  With his prior record of substandard performance, the severity of the recent offenses, and no signs of rehabilitation potential I recommend that AK2 (AW/SW) (applicant) be immediately separated from the Naval service.  

980310:	CNO 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 980330 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issues 1-6, the Board determined that 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 or wrongful procedure and no basis for relief.
Relief is not warranted.

In response to applicant’s issue 7, the Board conducted a complete review of the applicant’s records, facts and circumstances involving this case. As stated above, the Board did not find any reason to change the applicant’s discharge characterization.  However, the following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  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.  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.  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any  post-service documentation of good character and conduct.  The Board strongly encourages the applicant to submit an application for a personal appearance hearing.  Representation at personal appearance is highly recommended. The applicant is also reminded that the application must be received within 15-years from the date of discharge.  Relief denied.

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 92, for failure to obey a lawful general order, 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