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

ex-ABFC, USN
Docket No. ND01-00280

Applicant’s Request

The application for discharge review, received 010109, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I believe the discharge was not proper as I received four Good Conduct Medal after serving almost 16 years in the Naval Service Honorably.  In my request for discharge I never admitted to what I was charged for as you can see in my letter submitted.  I also would like to be compensated for my accrued leave earned that was taken from me, when I departed the Naval Service.

2.  I would also like to say that the charges brought against me were mixed up with ABFC R_ as when he was charged these are the same charges that were on his paperwork.  I strongly feel the command had had information when dealing with this case.  They never once asked me what my side was.  I also feel that since the captan received a letter belittling him all he wanted to do was get rid of everyone that was listed in the letter.

Documentation

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

Applicant's Leave and Earning Statement for Period Covered (1-29 FEB00)
Admin Discharge Package (4 pages)
Applicant's Charge Sheet (3 pages)
Applicant's Statement concerning proposed discharge action

PART II - SUMMARY OF SERVICE

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

	Active:   USN			900808 -960404	HON
					840625 - 900807	HON
	Inactive: USNR (DEP)	830708 - 840624	COG

Period of Service Under Review:

Date of Enlistment:  960405		Date of Discharge:  000308

Length of Service (years, months, days):

	Active:    03  11  04
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  12			AFQT:  50

Highest Rate:  ABFC

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC(4), SSDR(5), LOC, NAM(3), OSR(2), NDSM, SWASM, NCM(2) 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

960405:	Reenlisted for 6 years at NavHosp Corpus Christi.

000120:	Charges preferred to special court-martial for Charge I:  violation of the Uniform Code of Military Justice (UCMJ) Article 92 (2 Specs):
Spec 1:  on board USS ABRAHAM LINCOLN, during the period of February 1997 to about Dec 1999, fail to obey a lawful general regulation to wit: para 1165.2.c. U.S. Navy Regions, 1990 by wrongfully having an unduly familiar personal relationship with Aviation Boatswain's Mate (Fuels) Third Class M_ S. J_, U.S. Navy.
Spec 2:  on board USS ABRAHAM LINCOLN, during the period of February 1997 to about Dec 1999, fail to obey a lawful general regulation to wit: para 1165.2.c. U.S. Navy Regions, 1990 by wrongfully having an unduly familiar personal relationship with Aviation Boatswain's Mate (Fuels) Airman S_ B_, U.S. Navy.
Charge II:  violation of the UCMJ Article 134 (3 Specs):
Spec 1:  a married man, did, at or near Vancouver, British Columbia Canada in or about Feb 1997, wrongfully have sexual intercourse with Aviation Boatswain's Mate (Fuels) Third Class M_ S. J_, U.S. Navy, a single woman not his wife.
Spec 2:  a married man, did, at or near Everett, Washington in or about Feb 1997, wrongfully have sexual intercourse with Aviation Boatswain's Mate (Fuels) Third Class M_ S. J_, U.S. Navy, a single woman not his wife.
Spec 3:  a married man, did, at or near Hobart, Australia in or about Nov 1998, wrongfully have sexual intercourse with Aviation Boatswain's Mate (Fuels) Third Class M_ S. J_, U.S. Navy, a single woman not his wife.

000208:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He was apprised of and afforded the right to consult with counsel.  He waived his right to consult with counsel but was fully advised of the implications of his request.  The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Articles 92 and 134.  The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

000222:	CO, USS ABRAHAM LINCOLN recommended that the applicant's request be approved and the characterization be Under Other Than Honorable.

000302:	COMCRUDESGROUP THREE, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge Under Other Than Honorable Conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 000308 under other than honorable conditions in lieu of a trial by court-martial (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 applicant’s issues 1 and 2, the Board found 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 and no basis for relief.  The applicant signed his Request for Separation in Lieu of Trial by Court-Martial on 8 Feb 2000.  In paragraph 3 of that document, the applicant admits guilt to violation of UCMJ Article 92.  The Board will not grant relief concerning this issue.  In addition, the Board does not take into consideration lost leave time due to an administrative discharge.

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.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  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.  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 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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