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

 ex-PN1, USN
Docket No. ND01-01136

Applicant’s Request

The application for discharge review, received 010828, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to Convenience of the government - personality disorder (3620225, 3610100, 3620200).  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 020419.  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 and reason for discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630610.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

May I request that my DD214 of 23Mayl997 be upgraded to an Honorable Discharge or a General/Under Honorable Conditions; and/or reenlistment code be upgraded to RE-1.

1.  I was not properly counseled by my command, and so warrants an upgrade to honorable [A224.02]. I was not counseled by my command before I was discharged, and so warrants an upgrade to honorable [A25.06]. I was not properly counseled by my command because I was already incarcerated September 6, 1996. 1 was actually and officially discharged on May 27, 1997 in which time I was already transferred to the California State Prison - S_ in V_, CA, finishing my sentence.

2.  Counseling requirements were not met or waived, and so warrants an upgrade to honorable [A40.02 & A50.02]. Rehabilitative requirements were not met or waived, and so warrants an upgrade to honorable [A40.04]. Counseling requirements and rehabilitative requirements could not be met since I was already incarcerated and the commands, Naval Hospital Oakland and PSD Treasure Island were going through the base closure process which took effect on October 1996 and March 1997 respectively.

3.  There was no psychiatric evaluation conducted as required by the regulations and Lipsman v. Brown, CA 76-1175 (D.D.C. 2/6/78) [A86.02]. Psychiatric exam was not performed as required by the discharge regulations that applied to my case, and so warrants an upgrade to honorable [A46.06]. The required psychiatrist’s report wasn't done, and so warrants an upgrade to honorable [A57.06]. A mental status exam was not conducted, and so warrants an upgrade to honorable [A61.08]. Psychiatric evaluation & exam, required psychiatric report, & mental status exam were not conducted and performed due to the same reasons as mentioned above; already being incarcerated and commands going through base closure procedures.

4.  My discharge was not proper because my command waited too long after my conviction before discharging me, and so warrants an upgrade to honorable. [A61.10].  I was actually discharged on May 23, 1997 while already being incarcerated for eight and a half months, since September 6, 1996.

5.  You can't waive your right to a board hearing while you're in jail, so my discharge after a "waiver" was improper, and so warrants an upgrade to honorable [A02.10].  And I really don't remember signing a waiver, since no officer or navy representative visited me at the Santa Rita County Jail nor San Quentin State Prison nor California State Prison - S_, V_, CA.

6.  Without my being there, any discharge hearing was unfair because I was not able to tell my side of the story, and so warrants an upgrade to honorable.  And for your information, I took a plea bargain instead of going through the jury process.  I did not want my children to go through the trauma and heartache of the court proceedings and judicial system since they were so young.  And the thought of knowing that their Dad was going to prison was tearing them apart.

7.  My civil conviction was not even remotely connected to my military duties, and so warrants an upgrade to honorable.  My civil conviction has nothing to do with my military duties.  My victims were my children according to the report.  And if I had to make amends or ask forgiveness, it would be with my wife and children.  All I can say as to why all this came about was the mere fact I had extra marital relations, which in this case, I have to answer to my wife.

8.  There were not enough incidents to warrant my discharge, and so warrants an upgrade to honorable.

9.  I was not properly counseled about the discharge, and so warrants an upgrade to honorable. [A70.08]

10.  My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good, and so warrants an upgrade to honorable. [A92.02]

11.  I received awards and decorations, and so warrants an upgrade to honorable. [A92.04]

12.  I received letters of commendation, and so warrants an upgrade to honorable. [A92.06]

13.  I had combat service, and so warrants an upgrade to honorable. [A92.08]

14.  My record of promotions showed I was generally a good servicemember, and so warrants an upgrade to honorable. [A92.12]

15.  There were others acts of merits, and so warrants an upgrade to honorable.  [A92.16]

16.  I had two prior Honorable Discharges, and so warrants an upgrade to honorable. [A92.20]

17.  I have been a good citizen since discharge, and so warrants an upgrade to honorable. [A92.22]

18.  My record of NJP's/Article 15's (one in November 1986 & one in December 1987) indicates only isolated or minor offenses, and so warrants an upgrade to honorable. [A92.28]

Documentation

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

Copy of DD Form 214
Certificate of Reenlistment dtd 1 Apr 96
Honorable Discharge Certificate dtd 31 Mar 96
Certificate of Reenlistment dtd 22 May 92
Honorable Discharge Certificate dtd 21 May 92
Copy of DD Form 214 for period 83 FEB 22 to 88 SEP 19
Character Reference ltr from M_ T_ dtd Jul 18, 2000
Character Reference ltr from B_ A. H_, Correctional Counselor, dtd 06-21-2000
Character Reference ltr from co-worker, G_ R_, dtd Feb 23, 2000
Letters of Job Applications Rejection (2 ltrs)
ChoicePoint Consumer Reporting Agency background report dtd05/09/2000
Copy of Applicant's right under the Federal Fair Credit Reporting Act (3 pages)
Separation Authority (Commander, Naval Base San Diego) dtd 24 Apr 97
Service record pages (training, evals, assignment history, etc.) (13 pages)
Enlisted Performance Evaluations (14 reports)
Applicant's Application for the Limited Duty Officer Program dtd 25 Jul 96 w/endorsement w/evaluations (12 pages)
Awards and Certificates (31)
Applicant's letter to the Board dtd Aug 8, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		920521 - 960331	HON
				880920 - 920521	HON
				830222 - 880919	HON
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  960401		Date of Discharge:  970523

Length of Service (years, months, days):

	Active:    01  02  23
	Inactive:  None

Age at Entry:  36			Years Contracted:  2

Education Level:  13½		AFQT:  78

Highest Rate:  PN1

Final Enlisted Performance Evaluation Averages (number of marks):
No marks given for this period of service.

Military Decorations:  NMCAM (2), NCM

Unit/Campaign/Service Awards:  NEM, LOC, NUC(2), Navy "E" Ribbon, SSDR(2), NMCOSR(3), AFEM, CGSDR, KLM, SWASM

Days of Unauthorized Absence:  None, but confined 254 days prior to discharge.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630610, (Discharged in Absentia).

Chronological Listing of Significant Service Events:

960401:	Reenlisted for 2 years at Naval Medical Center, Oakland, CA.

970116:	Civil Conviction:  Alameda County Superior Court of the State of California for violation of Section 288(a) of Penal Code, lewd or lascivious conduct with minor children under the age of 14 years..
Sentence:  Imprisonment in State Prison for three years, to pay a restitution fine of $200.00 and to register as a sex offender.

970117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by conviction by the Alameda County Superior Court of 16 Jan 1997.

970310:	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 and the right to make statement.

970310:	Applicant's statement requesting a General Discharge be granted in lieu of the Other Than Honorable Discharge based on 13 years of honorable service.

970422:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding officer’s comments (verbatim):  "PN1 (Applicant) was transferred to Naval Station Treasure Island after his arrest and the disestablishment of his last command, Naval Medical Center Oakland.  He has been in civil confinement since 9 September 1996.  PN1 (Applicant) is currently serving an adjudged sentence of three years confinement at the California State Prison at San Quentin.  Request PN1 (Applicant) be separated from the naval service with an other than honorable discharge."

970424:	Commander, Naval Base, San Diego directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 970523 under other than honorable conditions for misconduct due to civil conviction (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).

May I request that my DD214 of 23Mayl997 be upgraded to an Honorable Discharge or a General/Under Honorable Conditions; and/or reenlistment code be upgraded to RE-1.

Issue 1 states that the applicant was not properly counseled.  The Record shows the applicant was afforded his due process while incarcerated at a civil facility.  Relief based on this issue is not warranted.

Issue 2 states that counseling and rehabilitation requirements were not met.  The Board found the applicant was found guilty of a serious offense in civil court.  The Board noted the applicant was afforded his due process throughout the Administrative discharge.  Relief is denied.

Issue 3 states case law and requirements for psychiatric counseling.  There is no law or regulation requiring such counseling in the discharge proceedings.  The applicant was found guilty in civil court of sex crimes and was properly processed and separated from the naval service.  Relief based on this issue is not warranted.

Issue 4 states that the discharge was improper because it took too long after his conviction before discharging him.  The Board determined this issue has no merit.  The applicant was made aware of the separation proceedings shortly after his conviction.  Relief is denied.

Issue 5 states that he could not waive his right to a board while incarcerated.  The applicant was afforded his due process while incarcerated and waived his rights for an Administrative Board.  Relief is denied.

Issue 6 states that the discharge was unfair because he could not tell his side of the story and the considerable negative effects it had on his family.  The applicant was convicted in civil court for lewd and lascivious conduct with minor children under the age of 14 years.  The applicant was properly and justifiably discharged from military service.  The fact that the applicant plea bargained instead of going to a jury trial is of no consequence to this Board but the information is noted.  Relief denied.

Issue 7 states that his civil conviction was not even remotely connected to his military service.  The applicant’s misconduct had a significant impact on his ability to serve.  He was incarcerated.  His sexual misconduct is a violation of the UCMJ.  The UCMJ covers a service member’s behavior on and off duty.  The applicant was justifiably punished and discharged from the military.  Relief denied.

Issue 8 states that there were not enough incidents to warrant his discharge.  The Board disagrees.  The applicant was found guilty in civil court of a serious offense.  Separation was appropriate.  Relief denied.

Issues 10 – 16 concern the positive aspects of the applicant’s service and his previous honorable service.  The applicant’s three prior Honorable enlistments have no bearing on the characterization of his final enlistment.  The negative aspects of the applicant’s final enlistment significantly outweighed the positive contributions he made for that same period.  The discharge was proper and equitable.  Relief denied.

Issue 17 states:  “I have been a good citizen since discharge, and so warrants an upgrade to honorable.”  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.  No such error occurred.  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’s misconduct clearly speaks for itself.  Relief denied.

Issue 18 states that his previous NJP’s were minor and isolated incidents.  The Board determined the applicant’s previous NJP’s were not factors in the characterization of his final enlistment since they occurred in previous enlistments.  The applicant’s misconduct during his final enlistment was the cause of his discharge and other Than Honorable discharge.  Relief denied.

The applicant requested his reason for discharge be changed to “Personality Disorder (3620225, 3610100, 3620200).”  The reason applicant was separated was due to his misconduct- civil conviction.  No other reason more accurately describes the reason for his separation from military service.  To change the reason would be inappropriate.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other branch of the Armed Forces.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - CIVILIAN CONVICTION.

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