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

ex-AE2, USN
Docket No. ND02-00382

Applicant’s Request

The application for discharge review, received 020213, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to sexual harassment.  The Applicant requested a documentary record discharge review.  The Applicant did not list any as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022.  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, as submitted

1.  I respectfully request to have my discharge upgraded.  My discharge was inequitable because it was based on violating the UCMJ one time in fifteen years and refusing to participate in the administrative board.

2.  My commanding officer also recommended a General Discharge based on my years of outstanding service.

There are no words for expressing my regret for doing something so stupid in an organization that always took care of me.

Documentation

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

Character Reference Letter
Copies of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		841218 - 881208	HON
	Active:   USN			881209 - 920226	HON
	Active:   USN			920127 - 960125	HON
	Active:   USN			960126 - 960611	HON
	Active:   USN			960612 - 990218	HON
	Inactive: USNR (DEP)	841029 - 841217	COG

Period of Service Under Review:

Date of Enlistment:  990219		Date of Discharge:  000918

Length of Service (years, months, days):

	Active:    01  06  30
	Inactive:  None

Age at Entry:  33			Years Contracted:  3

Education Level:  12			AFQT:  64

Highest Rate:  AEC

Final Enlisted Performance Evaluation Averages (number of marks): All Enlisted performance reports were made available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE"E"RIBBON (3RD), NAVY"E"RIBBON, AFEM(2ND), MUC(3RD), SSDR(5TH), Pistol Sharpshooter, NDSM, SASM, OSR(3RD), NAM(3RD), KLM, GCM(5TH) 

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:

990219:	Reenlisted at FAIRECONRON FIVE NAS North Island for 3 years.
  
000719:	NJP for violation of UCMJ, Article 92: (2 Specifications), failure to obey a lawful general regulation to wit: OPNAVINST 5370.2B, paragraphs 5(b) and (c), wrongfully engaging in conduct with a junior enlisted female within the command, which was of an unduly familiar personal nature, and failing to respect the difference in grade and rank with this junior enlisted female, violation of a lawful general order to wit: SECNAVINST 5300.26C, paragraph 8(a) (1)(creating an intimidating, hostile, and offensive working environment for three female Petty Officers within the command; violation of UCMJ Article 134: Assault (Indecent) accompanying a female within the command to a fan room onboard USS JOHN C. STENNIS (CVN-74), tying her arms and legs for a bondage demonstration, fondling her without her permission, and exposing his genital region after the female requested to be released.
	Award:  Forfeiture of $1,219.00 pay per month for 2 months, written reprimand.  No indication of appeal in the record.

000720:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense-sexual harassment, fraternization, and indecent assault with a junior subordinate.

000720:  	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 submit written statements for consideration by Separation Authority and the right to obtain copies of the documents used to support the basis for the separation.

000814:	Commanding Officer recommended a general discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s verbatim comments: […Unfortunately, AEC D_ (Applicant) had, starting mid-deployment, established an unduly familiar and completely inappropriate relationship with a particularly vulnerable young female petty officer.  His appalling and egregious conduct…occurred mostly at night and in secret…It is my opinion that AEC D_ (Applicant) preyed upon this vulnerable petty officer over the span of several months for his own sexual gratification and under the guise of showing concern for her well being.  It is also apparent that this may be an isolated incident in what otherwise appears to be 16 years of distinguished service.  Based on this belief, I recommend that AEC D_ (Applicant’s) separation be characterized as General]  

000907:	COMCARGRU SEVEN directed 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 000918 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).

Issue 1:  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 the Applicant’s own misconduct and willful disregard for the requirements of military discipline and demonstrated he was unfit for further service.  Under other than honorable conditions most clearly describes the Applicant’s character of service.  In addition, no other Narrative Reason for Separation more clearly describes why the Applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

Issue 2:  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, an employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The one character reference provided by the Applicant does not mitigate his conduct, and therefore an upgrade based upon post-service conduct is not warranted.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, 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