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

 ex-BM3, USNR
Docket No. ND02-00275

Applicant’s Request

The application for discharge review, received 020123, 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 designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021121.  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, as submitted

1.  My discharge under other than honorable conditions was not based on any misconduct in military service.

2.  One of three officers on the Administrative separation board felt I should have been honorably discharged.

3.  The board did not have my complete Navy Reserve service record to review at the time of the hearing.  A few months after the hearing I received unit awards for service between 1991 - and 1994.

Submitted by VFW:

4.  The Applicant was an excellent to outstanding sailor as attested to by his performance evaluations.  In addition he was spoken very highly of on his evaluations.  Even as an inmate he became positive model for the rest to follow.  We concur with his contention that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge as indicated in Block II-3 of his DD 293.

Documentation

The Board obtained the Applicant's Medical Record, but was unable to obtain Applicant's Service Record.  The following documentation was submitted by the Applicant for consideration:

Applicant's Request Pertaining to Military Records dtd Dec 3, 2001
Applicant's letter to the Board dtd Nov 5, 2001
Applicant's Parent letter to the Board dtd Nov 7, 2001
Character Reference ltr from D_ J. S_, 1SG, USA, Ret. dtd Nov 19, 2001
Character Reference ltr from C_ A. C_, Esq, Dir, Legal Ed, Inmate Access to Courts dtd Jul 19, 2001
Applicant's performance evaluation from The School of Paralegal Studies dtd Dec 4, 2000
Certificate of Accomplishment, Inmate Legal Assistant & Hearing Assistant, dtd Jul 14, 1998
Applicant's Change of Address letter dtd Sep 8, 2002
Copy of DD Form 214 (770524 - 810523)
Character Reference ltr from A_ H. B_ dtd Feb 11, 2002
Character Reference ltr from F_ J. V_, Saint Michael's Catholic Community, dtd Feb 12, 2002
Service Record pages, including Naval Reserve performance evaluations, separation authority, etc. (40 pages)
Applicant's résumé
Certificate of Degree, Bachelor of Arts, Lyndon State College, dtd Dec 1994
Certificate of Completion, The Professional Paralegal Program, with Honors, dtd Apr 16, 2002
Professional Career Development Institute ltr verifying completion of Paralegal Foundation Course with a cumulative grade of 96, dtd Sep 19, 2000

PART II - SUMMARY OF SERVICE

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

		Active:   USN 		770524 - 810523	HON (RelAcDu)
	Inactive: USNR 		810524 - 830522	HON

Period of Service Under Review:

Date of Enlistment:  900317			Date of Discharge:  9506xx 

Length of Service (years, months, days):

	Active for Training:      00  02  18
	Inactive:  		  05  03  xx (Exact discharge date unknown.)

Age at Entry:  31			Years Contracted:  6

Education Level:  12			AFQT:  Info not available.

Highest Rate:  BM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  3.96 (5)		OTA:  3.92

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" Ribbon, SSDR, NEM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900317:	Applicant re-entered the Naval Reserve for a term of 6 years.

950217:	Civil Conviction:  Applicant found guilty in a trial by jury, Vermont District Court, for violation of two counts of felony lewd and lascivious conduct with a child on 10 Sep 93 (molesting his two daughters, then ages ten and nine).  Motions were filed for new trial.
	950407:  Motions for a new trial denied.
	950411:  Pre-sentencing investigation ordered, to be completed 23 May 95.
Sentence:  Unknown, Applicant appealing his conviction.
[EXTRACTED FROM CO, NRC, BURLINGTON, VT LETTER OF 13 JUN 95.]

950422:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.

950422:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Applicant objected to the discharge.

950610:	An Administrative Discharge Board, based upon a preponderance of the evidence and a vote of 2 to 1, found that the Applicant had committed misconduct due to a commission of a serious offense and by a vote of 3 to 0, found that the Applicant had committed misconduct due to a civil conviction, by a vote of 3 to 0 that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.  
	Dissent:  Misconduct due to commission of a serious offense.  The dissent was based on an inability to find a preponderance of evidence, as details and witnesses to the offense were not presented.
	Dissent:  Characterization of discharge.  The dissent favored a General Discharge, defined as Naval Service which has been honest and faithful but significant negative aspects of the member's conduct outweigh the positive aspect of the member's service.

950613:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.  Commanding Officer’s comment (verbatim):  Concur with the findings and recommendation of the Administrative Separation Board; of separation and discharge under other than honorable conditions (OTH).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 9506xx (unable to verify the exact date of discharge) under other than honorable conditions for misconduct due to a 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).

Issues 1-4.  The Applicant’s issues are without merit.  In the Applicant’s case, mandatory processing for administrative separation, normally under other than honorable conditions, was required based upon the nature of the Applicant’s civil conviction.  An officer’s dissenting opinion in an administrative discharge board does not provide a basis for relief, or mitigate the Applicant’s misconduct.  The positive aspects of the Applicant’s service record and post-service conduct are not sufficient to warrant an upgrade to his discharge.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  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 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 “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