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

 ex-MMFN, USN
Docket No. ND01-01045

Applicant’s Request

The application for discharge review, received 010806, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008.  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/Separation in lieu of trial by court-martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Submitted by the American Legion:

1.  (Equity Issue)  This former member avers that he was innocent of the charges that he was accused of and only admitted guilt so he could care for his disabled wife.  On this basis and in light of his otherwise creditable service, he opines that separation under honorable conditions is warranted.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214 (81APR13 - 90OCT24)
Copy of DD Form 214 (75MAY23 - 81APR12)
Administrative Remarks (NAVPERS 1070/613) Supplementary General Court-Martial Order No. 11-90
Supplementary General Court-Martial Order No. 11-90 dtd Sep 27, 1990
Dept of VA, Statement in Support of Claim dtd Feb 27, 2001
Copy of DD Form 214 (73AUG16 - 75MAY22)
Record of Discharge Release From Active Duty, or Death (NAVPERS 1070/614) dtd May 22, 1975
Copy of DD Form 214 (68JAN05 - 71OCT22)
139 service record pages (includes contracts, performance evals, awards, assignments, etc.)
Letter from Fullerton College dtd May 22, 2001, approving less than full-time load (12 units) due to applicant's disability 
Servicemember's Group Life Insurance ltr dtd Apr 20, 2001, renewing VGLI coverage
Letter from Eli Home, Inc. (Dedicated to Helping Abused & Neglected Children) dtd Nov 21, 2000 thanking applicant for recent donation
R.&R. Consulting flyer concerning Eli Home requesting donations
Letter of Congratulations from Durst Accounting Corp dtd Nov 10, 2000, to applicant in opening a new business venture
Letter from Fictitious Business Name Renewal Service dtd Sep 26, 2000
Applicant's Performance Appraisal (Cinram) dtd Dec 11, 2000
Applicant's Résumé 
Servicemembers' Group Life Insurance ltr to applicant dtd May 2, 2000
American Institute of Family Counseling ltr of Dec 13, 1999
Bel Age Manor ltr dtd Dec 7, 1999 concerning rent increase
Certificate of Completion of  Basic Lift Truck Safety Training dtd Sep 21, 1999
Dept of Health and Human Services (Social Security Administration) Disability Determination Rationale dtd Apr 7, 1998
Disneyland Resort ltr of Aug 26, 1996 concerning job application
Letter of Employment (10/22/90 - 8/16/96) dtd Aug 21, 1996
FHP Employee Service Award dtd Oct 22, 1995
FHP Service Anniversary Congratulatory ltr dtd Oct 10, 1995
WFS Financial Inc. Pay Off Loan Congratulatory ltr dtd Oct 10, 1995
Certificate of Quality Employee of the Quarter dtd Jun 1995
Westminister Journal invoice dtd Dec 15, 1993
Westminister Journal Proof of Publication dtd Jan 10, 1994
FHP, Inc., Winning Idea Submission - Maintenance Quality Management dtd Jan 31, 1994
Certificate of Congratulations, FHP Five-Star Quality Service Program dtd Jul 16, 1993
Outstanding Performance Memo (FHP) dtd May 28, 1993
Certificate of Congratulations, FHP Five-Star Quality Service Program (4 certificates)
FHP Certificate of Achievement (completed Quality Work Group Training) dtd Jul 21, 1992
Certificate of Attendance (Beginning Wordperfect) dtd Apr 2, 1991
FHP Employee of the Quarter Certificate dtd Apr 1, 1991
Rent Agreement dtd Feb 28, 1992
Home Sitting Service Agreement dtd Feb 4, 1991
Letter of appreciation from L_ O_ dtd Dec 27, 1990
Letter of thanks from V_ H_ dtd Dec 15, 1990 for house sitting
DMV Police check
Character Reference ltr from D_ L_, Telcom Regional Director
Character Reference ltr from J_ B_, Maintenance Supervisor dtd Sep 20, 1990
Interim Marriage Certificate dtd Feb 10, 1988
Marriage Certificate dtd Feb 10, 1988
Applicant's Certificate of Live Birth
Copy of Applicant's spouse driver's license and social security card
Copy of Applicant's driver's license and social security card
Social Security account earning statement

PART II - SUMMARY OF SERVICE

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

	Active:   USN			680105 - 711022	Transfer to Naval Reserve
	Inactive: USNR		711023 - 730815	HON
	Active:   USN			730816 - 750522	HON
	               USN			750523 - 810412	HON

Period of Service Under Review:

Date of Enlistment:  810413		Date of Discharge:  901024

Length of Service (years, months, days):

	Active:    09  06  12 (Doesn't exclude confinement or appellate leave time)
	Inactive:  None

Age at Entry:  33			Years Contracted:  6 (7 months extension)

Education Level:  12			AFQT:  56

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.55 (4)	Behavior:  3.95 (4)		OTA:  3.5

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, VSM (1 Bronze Star), Republic of Vietnam Campaign Medal, MUC (w/2 Stars), GCM (3)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court-martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

810413:	Reenlisted onboard USS DIXIE (AD-14) at San Diego, CA for term of six years under the GUARD III assignment for duty in Holyloch, Scotland.

810706:	Joined USS HOLLAND (AS-32), Holyloch, UK, for duty.

840228:	Joined USS MERRIMACK (AO-179), Norfolk, VA, for duty.

860312:	Charges preferred to general court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 125:  commit sodomy with K_ G_, a child under the age of sixteen years and for violation of the UCMJ, Article 134 (2 specifications): commit indecent assault upon K_ G_, a person not his wife, by fondling her breasts and attempting to touch her vaginal area with intent to gratify his sexual desires and wrongfully solicit K_ G_, his stepdaughter, to commit an indecent act, to wit: incest, with him.

860722:	General Court Martial [trial dates 860722 - 860723]
	Charge I:  violation of the UCMJ, Article 125, specification - sodomy with a female child, during April 1983 to December 1983.
	Charge II:  violation of the UCMJ, Article 134 (2 Specifications):  
Specification 1:  Indecent assault upon a female not his wife, during December 1985.
Specification 2:  Solicitation to commit incest, on 1 January 1986.
	Findings:  to Charge I and specification thereunder, guilty.
	To Charge II and specification 1 - guilty, except for the words "commit indecent assault upon K_ G_, a person not his wife, by fondling her breast and attempting to touch her vaginal area with intent to gratify his sexual desires," substituting therefore the words "unlawfully touch K_ G_'s breast."
	To Charge II and specification 2 - not guilty.
	Sentence:  Confinement for one year, reduction to E-1, dishonorable discharge.  
	CA 870112:  Sentence approved and ordered executed, except for bad conduct discharge.

860727:	Joined Transient Personnel Unit, Naval Station, Norfolk, VA.

860906:	Applicant requested retention in lieu of separation.
	
860909:	Joined MCDEC Quantico, for confinement.

870511:	From confinement; to appellate leave.

890519:	NMCCMR:  Reversed as to Charge I and its specification and the sentence.  The findings of guilty of Charge I and its specification are set aside.  Record of trial returned to Judge Advocate General of the Navy for remand to that court, which may order a rehearing on the affected Charge and the sentence, or dismiss that Charge and reassess the sentence based on the remaining findings of guilty.

900522:	NMCCMR:  Record of trial returned to the Judge Advocate General (JAG) for submission to an appropriate convening authority, who may either order a rehearing on Charge I and its specification and the sentence, or dismiss that charge and reassess the sentence based on the remaining findings of guilty.

900524:	JAG returned the record of trial to the Commander, Naval Base, Norfolk, VA with instructions for compliance with the decision of the NMCCMR.

900628:	Commander, Naval Base, Norfolk, VA ordered a rehearing on Charge I and its sole specification.  Rehearing to be held at Naval Legal Service Office, Naval Base, Norfolk, VA and will proceed at a time and date to be determined.

900831:	Commander, Naval Base, Norfolk, VA approved the delay of applicant's reporting date pursuant to orders recalling him to active duty from appellate leave.  Applicant's reporting date delayed until 1 October 1990.

900906:	Branch Medical Clinic, Naval Station, Long Beach, Psychiatric eval:  Pt here to determine if he is psychologically fit for accepting OTH in lieu of GCM.  Pt now has steady job for 14 months, has been remarried for 2½ years, taking care of wife who is ill.  Has been in counseling with clergyman for 2½ years.  
	Mental Status Examination:  Appearance - well groomed, cooperative, relaxed.
	Assessment:  No psychiatric diagnosis - normal psychiatric exam.
	Plan:  Competent to make the decision to accept an OTH in lieu of General Court Martial.  Return to clinic as needed.

900927:	SGCMO:  Finding of guilty of Charge I and the Specification was set aside by the U.S. Court of Military Appeals by mandate dated 19 May 1989.  The finding of guilty of the lesser included offense of Specification 1 of Charge II was affirmed.  Subsequently, on 24 May 1990 the case was returned to Commander, Naval Base, Norfolk for rehearing or reassessment.  Rehearing ordered on 28 June 1990, the accused submitted on 4 and 16 September 1990 a request for discharge under other than honorable conditions in lieu of trial by general court-martial on Charge I and the specification, which request was approved this date.  As to the findings of guilty of the lesser included offense (assault and battery) of Specification 1 of Charge II, which finding was affirmed on appeal, the sentence is reassessed.  Only so much of the sentence as provides for reduction to pay grade E-5 is approved and ordered executed.  Other than reduction to pay grade E-5, all rights, privileges, and property of which the accused has been deprived by virtue of the execution of the sentence (convening authority's action and promulgation dated 12 January 1987) adjudged at the former trial of this case on 22 and 23 July 1986 will be restored.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901024 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).

Issue 1.  In response to the applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Board found that the applicant’s assertion that he only admitted guilt and requested the other than honorable discharge in order to care for his ill wife was not a sufficient mitigating factor to overcome the presumption of regularity.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

Issue 2.  The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug and alcohol free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 125, sodomy, and Article 134, indecent assault, 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	
 
rd.