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

 ex-GSMFN, USN
Docket No. ND02-00614

Applicant’s Request

The application for discharge review, received 020403, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on one isolated incident in 22 months of service.  I was arrested for having a relation of a sexual nature with a young lady that turned out to be underage.  The young lady lied about her age and admitted it.  But that was of no concern to the police.  I used the wrong judgment in their eyes so I was punished.  I never denied having a sexual encounter with the young lady.  I was given probation, which meant I could not get underway with my ship.  My command made the decision to discharge me.  I wanted to stay in and put this behind me.  I was caught in a double jeopardy situation.  Since then I attended ITT technical institute and receiving my degree in Electronics and I have purchased a home.  I was unable to take advantage of my G.I. Bill or any of my V.A. Benefits since my command decided to discharge me.  I feel like I was cheated.  I know you cannot do anything about the benefits I lost but please find it in your hearts to upgrade my discharge to General under honorable conditions so I can at least get a job with the gov't or a government agency.

Thank You

		Signed by Applicant 

Documentation

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

Copy of DD Form 214
Copy of ADSEP Authorization Message from USS SPRUANCE
Copy of Associate of Applied Science Degree from ITT Technical Institute

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	901221 - 910324	COG

Period of Service Under Review:

Date of Enlistment:  910325		Date of Discharge:  930120

Length of Service (years, months, days):

	Active:    01  09  26
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 month extension)

Education Level:  12			AFQT:  72

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920524:	Civil Conviction:  [Court of the Fourth Judicial Circuit in an for Duval County, Florida] for Lewd and Lascivious acts upon a child.
Sentence:  2 years probation, 2 years of counseling, 80 hours of community service.  

921009:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921014:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 87: Missing ship's movement, violation of UCMJ Article 120: Carnal knowledge.
	Award:  Restriction and extra duty for 17 days.  No indication of appeal in the record.

921016:	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 to submit in my own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.

921202:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): [Petty Officer D_ is an above average worker.  The psychological counseling schedule imposed as a condition of his plea bargain probation renders GSM3 D_ ineligible of performing duties underway.  This consideration and the nature of his infraction argue strongly for immediate discharge of GSM3 D_.] 

921210:	BUPERS 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 930120 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 Applicant believes his discharge was inequitable because it was based on one isolated incident in 22 months of service.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor.  The Applicant’s service was marred by a civil conviction constituting a serious offense against the UCMJ.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans’ benefits or improving employment opportunities.  These issues do not serve to provide a foundation upon which the Board can grant relief, therefore, relief denied.

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, a positive employment record, documentation of community service and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the egregious offense for which he was discharged.  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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 "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