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

ex-EMFN, USN
Docket No. ND01-00403

Applicant’s Request

The application for discharge review, received 010212, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To whom it may concern, time has passed and I learned the implications of my actions I complied w-the orders at the time.  It was a very difficult time for me.  I have a family now, 3 kids and my wife I am trying to move forward. 

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			None
	Inactive: USNR (DEP)	880718 - 890710	COG

Period of Service Under Review:

Date of Enlistment:  890711		Date of Discharge:  960910

Length of Service (years, months, days):

	Active:    06  11  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (38 months extension)

Education Level:  12			AFQT:  30

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (6)	Behavior:  3.70 (6)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, MUC, SSDR(5), SASM, GCM, AFEM 

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 3630600.

Chronological Listing of Significant Service Events:

960509:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 125: Sodomy; Charge II: violation of the UCMJ, Article 134: Adultery, (2 Specifications), Spec 1: On diverse occasions, from on or about 950627 to on or about 951104, wrongfully have sexual intercourse with S___ A. K____, a woman not his wife; Spec 2: On or about 9506, commit an indecent act upon the body of S___ A. K___, a female under the age of 16 years of age, not his wife, by fondling her, leaning over and laying on top of her; lifting her bra and feeling her breast; placing his mouth on her breast; and placing her hand upon his private parts, with intent to gratify his lust or sexual desires.
	Findings:  to Charge I and specifications thereunder, guilty. To Charge II and specifications 1 and 2  thereunder, guilty.
	Sentence:  Confinement for 3 months, forfeiture of $600.00 per month for 3 months, reduction to E-3.
	CA 960815:  Sentence approved and ordered executed.

960510:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by your special court-martial conviction on 960509.

960510:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960906:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by a special court-martial conviction on 960509.  

961023:	BUPERS 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 960910 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

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.  In the applicant’s issue 1, the applicant has not provided any 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.

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 – 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 125, sodomy 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 "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