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

 ex-AOAR, USN
Docket No. ND01-00763

Applicant’s Request

The application for discharge review, received 010507, 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 011127.  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

1.  My discharge was because of an incident, which happened when someone in my squadron brought 3 guest who were Japanese females, to the barracks.  While they were next door from my room like many others I stopped by there.  I saw some others having sex with one of the girls and other were in different rooms at the Navy Lodge and stayed there.  I seen C_____ the next day unaccompanied walking around base as me and my roommate went to the movies.  That night I went to the Navy Lodge and was stopped at the lobby by security and questioned.  Originally there was a complaint about in the Navy Lodge, but when the girls saw security the possibly panic and that's probably why the claimed the spoke no English.  They told interpreters that held against there will and was sexually assaulted, but dropped the charges.  We all were surprised when we were questioned and in disbelief.  The investigators didn't care about the truth only about what they wanted to hear.  We tried to find a way to overcome all of this, but we couldn't.  The first investigation we were stunned, but on the second one we was on the boat so we were unable to do anything.  The one who brought the guest was the only Caucasian person among us.  There were others as much involve as any of us who were forgotten and still there working.

2.  I am respectfully requesting the change of my discharge from Other Than Honorable (OTH) to Honorable, Reentry code, and Narrative Reason for Separation from Misconduct, because I feel I was unfairly punished.  My 3 years, 11 months and 27 days of active duty consists of 2 Navy Unit Commendation, 2 Navy "E" Ribbons, 2 Armed Forces Expeditionary Medals, 2 Navy Marine Corps Overseas Service Deployment Ribbons, and a Sea Service Deployment Ribbon.  I was stationed Helicopter Anti-Submarine Squadron 14 (HS-14), which deployed with the U.S. S Independence until it's decommissioning and cross decked over to the U.S.S. Kitty Hawk.   Whenever the ship is not underway HS-14 is based and operated out of Naval Aire Facility (NAF) Atsugi.  While stationed with HS-14, I've been o 2 Persian Gulf Deployments, 1 with U.S.S. Independence and the other on the U.S.S. Kitty Hawk spending approximately 9 to 10 months in that area.  I also visited many other foreign countries such as Korea, Hong Kong, Australia, Singapore, and several other places displaying the role of a respectable ambassador.  My rate was Aviation Ordnance man (AO), which meant I was responsible for handling the squadron 's ordnance.  I was also part of the Aircraft Corrosion Control and Painting work center.  Before my discharge I moved up in rank from Airman to Third Class Petty Officer (AO3), passed and met qualifications to be designated by the Quality Assurance Officer of HS-14 as a Collateral Duty Inspector (CDI), supervised and inspected the work of the Aircraft Corrosion Control and Painting work center, and took pride and enjoyed doing my job well.  My Discharge was because of an incident, which happened around 19 Mar 00.  Someone in HS-14 brought 3 females guest whom were Japanese citizens to the HS-14 barracks.  He introduced them to many people who were around in the barracks and ended up staying with the 3 of them next door from the from I resided.  The 3 of them stayed that night, but 2 went with host back to his room while the other 1 stayed door.  Many people passed by the room including myself and a couple of people had sex with her.  The very next day when I was with a couple of friends and girlfriends I saw the 3 of them walking around base.  I later learned they had rented a room under the name of their host's name at the Navy Lodge on base.  Later that night I had walked to the Navy Lodge with a friend and upon arrival, we stopped and questioned about a disturbance by the base security.  The 3 females were involved in an incident and we were brought before then, but they said we didn't have anything to do with it.  They also claimed they spoke English to security, perhaps being scared when security arrived thinking they were in trouble they came up with some bogus story to get their selves out of trouble and away from this situation.  Later that night, I was awakened along with my roommate by security and brought to the security station for questioning.  The 3 females claimed they were Raped and when we all were in the security station 1 investigator MA1 C____ took a look at all of us and told us without the investigation even starting we were all guilt.  The 3 females never pressed any charges, but HS-14 and NAF Atsugi following up on the case.  Under close supervision and many restrictions during the long and stressful investigation we were ready for the end of this process to come.  But while waiting for our innocents to be proven and decision to finally come out, when the time came, we only were informed that the process was going to start all over again.  The first investigation was either done wrong or they just didn't have the evidence they wanted to prove us guilty.  We were aboard the U.S.S. Kitty Hawk when the second investigation took place and since we were unable to receive help, advice, or knowledge to what was going on with this case from HS-14's Legal Officer as he was by military legal instruction suppose to provide with, we read several military legal justice to find out our rights and the proper procedures for this investigation.  We also visited and Equal Opportunity Representative aboard U.S.S. Kitty Hawk for advice and help, but just before he could aid us, our long and stressful process was all of the sudden rushed, so he was unable to give us the help he planned, but only some advice and answer some of our questions.  At the end, all of the African Americans, including myself, and 1 Caucasian, the person who originally brought them to base, were discharged, while the others involved who were Caucasian are still in performing duties as if everything is all right.  Every one of us was as much equally involved as them yet me and 4 others African Americans received court-martials, while the rest received captain's mast.  We were all charged with Indecent Acts and what qualified us for that was on a naval facility if 2 individuals is having sex and someone else is around to view this act is defined as Indecent Acts.  I almost completed my first term with only 1 non judicial punishment (NJP).  And before being involved in this incident my job performance, responsibilities, and skills were incredibly rising.  However, during this investigation, my motivation decreased because of harassment by my superiors (Chief Petty Officers) in the command, outcaste or singled out of command activities by command, fellow sailors (friends) told not to speak to us by superiors, being looked at and automatically judged guilty by a investigator, refusing someone's allotment because of case pending without proper authorization by naval military instructions, taking away military identification, after us receiving them from the ship Legal Department, without any reason, command Legal Officer failing to keep us informed every 72 hours as instructed in military justice instruction, room destroyed for evidence which was present for them day before room inspection, room search done illegally because of failure to receive authorization from HS-14 Commanding Officer, and being prematurely punished for being accused. And also while our investigation took place other incidents were ignored for example at a barbecue thrown by individuals in HS-14, the Commanding Officer visited the activity which involved 2 of his sailors drunk brawling, ice being poured down a female shirt, and while on a port visit in Guam 1 of his Second Class Petty Officers were returned drunk and handcuffed.  All of this took place during our investigation and was ignored.  I feel the type of discharge I have been given will have a negative impact on my future and in the civilian sector.  I respectfully request for you to research my discharge, which I think was racially bias.

Documentation

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

Copy of DD Form 214
Copy of Quality Assurance Representative/Inspector Recommendation/Designation Form 
Copy of PO3 Authority Letter
Copy of Certificate of Training (Aircraft Paint, Touch -Up and Markings)
Copy of Certificate of Training (Aircraft Corrosion Control)
Copy of Certificate of Completion (Aviation Ordnance Course, Class A1)
Copy of Certificate of Completion (Petty Officer Third Class Indoctrination Course)
Copy of DD Form 149
Copy of Privacy Release and Constituent Information Form
Letter from BCNR to Congressman I____

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	960306 - 960522	COG

Period of Service Under Review:

Date of Enlistment:  960523		Date of Discharge:  000518

Length of Service (years, months, days):

	Active:    03  11  26
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  35

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  2.60 (5)		OTA:  2.85 (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC(2), NAVY"E'RIBBON, AFEM(2), NMCOSR(2)SSDR 

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

981008:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $568.95 per month for 2 months (suspended for 1 month), restriction for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

000428:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134: On or about 000319, at Naval Air Facility, Atsugi, wrongfully commit an indecent act with S____ S____ by rubbing his penis against her vaginal area in the presence of other people.
	Finding:  to Charge I and the specification there under, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $600.00 pay per month for 1 month, reduced to E-1.
	CA action 000502:  The findings are modified and upon reassessment the sentence as adjudged is approved and ordered executed.

000429:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000429:  	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.

000503:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000504:	Commander, Carrier Group FIVE authorized 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 000518 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). 

The applicant’s issue 1 and 2 describe the circumstances surrounding his misconduct and alleges he was treated unfairly due to racial prejudice.  The NDRB carefully reviewed the discharge for propriety and equity and found no impropriety or inequity to exist.  Further, there is no evidence that the applicant was unfairly treated or prejudiced because of his race.  The record shows the applicant was afforded his due process rights at his Summary Court Martial (SCM) and during his discharge proceedings.  The NDRB found the issue of impropriety without merit.  The applicant claims that an “error in justice” or injustice occurred in his discharge.  The NDRB disagrees.  The record shows that during providence at SCM, the applicant described his indecent acts to the military judge.  The record clearly shows the applicant was not suitable for continued service as evidenced by his criminal behavior.  The Other Than Honorable discharge accurately describes his service to the U.S. Navy.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant remains 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 recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, 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