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

ex-FR, USN
Docket No. ND01-00396

Applicant’s Request

The application for discharge review, received 010212, 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 010629.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

Dear DRB:

The following issues are the reasons I believe my discharge should be upgrade to honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  My averages for conduct and efficiency and behavior and proficiency were pretty good.  Since I reported onboard the U.S.S GUARDIAN (MCM5) on April 15 1997, I did nothing else but to try to adjust to this new type of lifestyle away from family friends and love ones, I did my duty without asking why.  I never got in any trouble not for drinking, fighting or disrespecting any officer I did my job, long hours of work and in time I was another American serving his country in Japan, away from everything I knew as my home.

2.  I feel I was overlooked by my superior officers, I never got an EVAL, as far I can remember I was away working for the Galley or cranking for 90 days, but I did almost 123 day until I got sent back to engineering to do the job I was originally enlisted for.  " I never sign no EVAL" because of doing other job for almost six month and when I finally got one My C.O. will not let me sign it. caused I was been investigated by NCIS.  I guess I was never destined to know how much work I did and how I had been appreciated.  I feel betrayed by political motives and opportunist people.  Did I just waste two years of my life for nothing?

3.  My record of conviction by civil authorities indicated "no record" I have always been an outstanding citizen.

4.  My discharge was improper because the command did not review my service records I believe they offered me a discharge based only on the fact I just came out the brig, therefore I was undesirable in the eyes of a C.O. that just knew my legal status.  I was told to wait for an administrative board but I was never told a date or when this was going to take place.  I was basically on probation without pay and still doing my military duty.  My bills the desperation of this nightmare to be over, led me to take the offer of an OTH.  I had no other choice but to take the waiver from the administrative board and they gave me a OTH.  My General Court Martial did not find me appropriated for a DD, strangers to decided on what to do with me.

5.  I have been a good citizen since my discharge, I been involved with community leader and politician.  I have been attending school at Montclair State University for the past year now.

6.  Sir all wanted know is the possibility of getting my discharge upgrade and if not, at list I pledge for my reentry code to be change.  Yours very truly,

Documentation

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

Copy of DD Form 214
Character reference dated June 23, 2000
Character reference dated April 29, 1999
Letter from Montclair State University dated December 10, 1999
Forty-three pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	961016 - 961216	COG

Period of Service Under Review:

Date of Enlistment:  961217		Date of Discharge:  981120

Length of Service (years, months, days):

	Active:    01  11  04
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  61

*No marks found in service record.

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

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

Chronological Listing of Significant Service Events:

980629:	General Court-Martial.
	Charge I: violation of the UCMJ, Article 120:
	Specification: Carnal knowledge.
	Charge II:  violation of the UCMJ, Article 134 (2 specifications):
	Specification 1 and 2: Indecent acts with a child in the presence of MSSN
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: Forfeiture of $600.00 per month for 6 months, confinement for 90 days and reduction to FR.
	As of CO's letter of 980921 CA has not acted.

980629:	To confinement.

980921:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980921:	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.

980921:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981015:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) applicant be discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981102:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981112:	CNPC 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 981120 under other than 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).

In the applicant’s issues 1, 2 and 4, the Board found that the applicant was found guilty of carnal knowledge and 2 specifications of indecent acts with a child at a General Court Martial.  For the applicant’s edification, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  Although the applicant states his proficiency and conduct marks were “pretty good”, the applicant’s conviction at a General Court martial significantly outweighed any positive aspects of his abbreviated career in the Navy, and therefore the applicant’s service is accurately characterized as having been served under other than honorable conditions.  

In the applicant’s issues 3 and 5, 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 (D).  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), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  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.

In the applicant’s issue 6, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.  No relief will be granted based on this issue. 

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 "afls10.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