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

ex-CTOSA, USN
Docket No. ND01-00018

Applicant’s Request

The application for discharge review, received 000927, 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 010329.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I respectfully request that the Navy review my discharge and consider it for an upgrade to Honorable.  While serving my country for a short time, I was selected as mast of arms for my company.  I was selected for Cryptology School and I was recommended for Flag Duty. I had the highest clearance available and the Navy did an extensive background check.  I graduated from Cryptology "A" school with a 96.3 grade point average.

I was stationed in Pensacola, Florida after boot camp and after being there a short time I was sexually assaulted by a fellow sailor.  I reported the rape to the proper authorities and I requested help from the Navy.  I accepted the Undesirable Discharge because I feared for my life and I was in need of help.  I suffered with depression and horrible nightmares and anxiety attacks.  I wanted to go home because I no longer trusted the Navy or Naval officials.  I am presently battling with Post Traumatic Syndrome and I am learning to deal with it.  The Navy and Naval Investigative Services at Kings Bay, Ga. made my life hell.  By my record how could I go from a high security flag seaman to a rape victim who was made out to be the demon?  I was given to support from the Navy.  I was questioned for over 7 hours to get me to change my statement because it didn't suit the Navy.  I was accused of making a false statement.  I was constantly harassed & singled out by upper staff members.  I knew my sanity and health was at risk.  I was constantly accused or written up for something after I reported the rape.  My own country treated me like the enemy.  I was a good sailor with high expectations until the rape.  But the Navy raped me over & over by trying to cover it up.  The mental turmoil I was suffering was unbearable and I was unable to function in my day-to-day life.  I just wanted to go home.  Now I am 29 years old and I feel due to the circumstances surrounding my case I was forced to make unwise choices, & with the help of family & the love of GOD I can live on one day at a time.  I am hoping that the board will grant my upgrade and give me some peace of mind.

Documentation

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

Copy of DD Form 214
Seven pages from applicant's service record
Copy of witness statement dated February 9, 1992

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910828 - 920510	COG

Period of Service Under Review:

Date of Enlistment:  920511		Date of Discharge:  931005

Length of Service (years, months, days):

	Active:    01  04  25
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  14			AFQT:  50

Highest Rate:  CTOSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA			Behavior:  NMA		OTA:  NMA

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 3630600.

Chronological Listing of Significant Service Events:

930225:	Investigating Officer's Report.  Complete report can be found in service record.

930322:	NJP for violation of UCMJ, Article 134: Wrongfully and unlawfully subscribe under oath a false statement on 4Nov92.
	Award: Forfeiture of $456 per month for 2 months, reduction to CTOSA.  Appealed 930326.  Appeal denied 930505.

930824:	NJP for violation of UCMJ, Article 92 (2 specs): Disobeyed lawful orders on both specifications in not providing chain of command with SIQ chits when in receipt of them on 12Aug93 and 17Aug93.
	Award: Oral admonition, reduction to CTOSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

930607:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930615:  	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930908:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, has committed the offense of making a false official statement in accordance with Article 134, UCMJ (commission of a serious offense), and by a unanimous vote, found that the misconduct warranted separation, and recommended discharge general (under honorable conditions).  Dissenting member statement: Felt second statement's validity was questionable.  Accused was permitted to incriminate herself without proper reading of her rights.

931007:	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):  CTOSA (applicant) has agreed to be separated under General conditions as recommended by the Administrative Board (enclosure 7 refers). She was discharged locally on 5 October 1993.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 931005 general (under 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 response to the applicant’s issue, the Board found that the applicant made a signed statement to NIS on 25 January 1993 stating that her original accusation of rape was not totally truthful and the acts were consensual.  Even though the applicant thought she was being truthful at the time and possibly didn’t understand the definition of rape, the applicant did commit a serious offense by subscribing a false statement under oath.  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 following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  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 documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is highly encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, for false swearing, 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