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

ex-HN, USN
Docket No. ND01-00572

Applicant’s Request

The application for discharge review, received 010327, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to "other".  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 011018.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and reason for 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.  The discharge that I received from the United States Navy judged me on no conviction or evidence of a true crime.  I believe that the grade was unacceptable and should be upgraded to an "Honorable" discharge.

2.  I would also like a review of my separation reasoning be changed to "Other".  If you look at my service record, you can clearly see that before this incident occurred, my record was very clean.  Even after my disciplinary board and up to the present, I have had no trouble with the law.

I know and understand that poor judgment was exercised that night.  No blame can be put on anyone or anything else but me.  I that I wish for now is to finally put to rest this blemish that happened many years ago.  I believe that I have served my sentence long enough through the years and wish to move on.  You, the review board, can help by upgrading my discharge to "Honorable" and changing my separation code to "Other" as specified earlier.

Documentation

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

University of Kentucky academic transcript
Copy of DD Form 214
Character Reference ltr from G_ R. L_ B.S.W.
Character Reference ltr from D_ G. H_, Ph.D, CCC dtd Jan 27, 2001
Character Reference ltr from R_ M_, Head Junior Varsity Coach 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	921211 - 931019	COG

Period of Service Under Review:

Date of Enlistment:  931020		Date of Discharge:  960607

Length of Service (years, months, days):

	Active:    02  07  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  66

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (2)	Behavior:  3.73 (3)		OTA:  3.73

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:

980711:	Arrested by Fayette County Sheriff's Department, Davilee, KY on charge of Sexual Misconduct.

951108:	Trial held and Court Order from the Commonwealth of Kentucky, Fayette District Court. Criminal Branch:  Having plead not guilty, and having moved for trial by jury and the Commonwealth having moved the Court to defer prosecution for a period of 1 year with the recommendation that if no other similar charges resulted in convictions during that term, the charge would be dismissed with prejudice and the Court being sufficiently advised.

960105:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense as evidenced by your arrest on 11 July 95 for sexual misconduct, violation of Article 134 of the Uniform Code of Military Justice: Assault - indecent.  Advised the characterization may be Other Than Honorable.

960108:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960227:	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 with a General (Under Honorable Conditions).

960227:	Applicant's statement and request: ……."I'd like to stay in the Navy……..If you decide to separated me, please consider giving me at least a General discharge so that I have a chance at being accepted into college and going on with my life".

960416:	Commanding officer, concurring with the findings of the Admin Board, recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense - indecent assault.

960514:	BUPERS requested NAVMEDCEN San Diego, CA to advise circumstances precluding assignment of an 0-4 line officer to applicant's administrative board and why the needs of Navy required processing before an 0-4 line officer was reasonably available.

960522:	BUPERS directed the applicant's discharge with a General Under Honorable Conditions by reason of misconduct due to the commission of a serious offense - indecent assault.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960607 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense - indecent assault (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).

The applicant’s first issue states:  “The discharge that I received from the United
States Navy judged me on no conviction or evidence of a true crime.  I believe that the grade was unacceptable and should be upgraded to an "Honorable" discharge.”  The Board found that the basis of the discharge was evidenced by the applicant’s arrest on 11 July 95 for sexual misconduct, violation of Article 134 of the Uniform Code of Military Justice: Assault indecent.  The civil court deferred prosecution of the applicant for a period of 1 year.  An Administrative Board, based on the preponderance of evidence and by a unanimous vote, found the applicant had committed a serious offence and that the misconduct warranted separation.  The NDRB found no impropriety or inequity in the administrative separation of the applicant with the characterization of service as General (Under Honorable Conditions).  Relief is not warranted.

The applicant’s second issue states:  “I would also like a review of my separation reasoning be changed to "Other".  If you look at my service record, you can clearly see that before this incident occurred, my record was very clean.  Even after my disciplinary board and up to the present, I have had no trouble with the law.”  The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief is denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant did not provide any documentation of his post-service.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs 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.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is 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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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