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

 ex-SHSN, USN
Docket No. ND02-00944

Applicant’s Request

The application for discharge review, received 20020618, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20031009.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues as stated on the application:

“1.  I, (Applicant) (social security number deleted), enlisted in active duty services in the United States Navy on June 14, 1990.  I was discharged under other than honorable conditions on May 23 1993.  This undesirable discharge was improper due to the fact that I was falsely accused in taking part of a crime I had no involvement in.

    The original charges against me were drop by the State of South Carolina.  Prior to my incarceration, I was standing duty on board the USS Richmond K. Turner.  There I, was released by the officer of the deck whom also stood duty in my section on January 2, 1993 to the Naval Investigative Service and the North Charleston Police.
The United States Navy regarded me as a criminal when this case went public.  Which at the time I felt that they just wanted to wash there hands of me.  I received no representation from the United States Navy.  Therefore I had to obtain my own counsel.  E_ K. C_ of (address deleted).  The only time I received visits were from my friends and family.  The government came only to serve me discharge papers, which I decline to sign and accept due to my innocence.

    On May 28, 1994 the charges against me were dismissed enter by First Circuit Solicitor, W_ M_ B_.  Others involved in my dismissal Judicial Circuit Judge, C_ W_ W_, Jr. and my attorney, E_ K_ C_.  This shows I had no involvement in any criminal activity for which I was blamed.  I am also a victim in this particular incident.  Therefore I feel the U.S. Navy should over turn my discharge of other than honorable to honorable.  By having this unjust discharge over my head has made it hard for me to find work.  This has been stressing me for many years because I have not been able to provide for my family as I would like.

    Please take in consideration that I was not involved in any crime and all charges against me were dismissed to show as proof.  Over turning my discharge is only fare.

Sincerely,”

Issues submitted by Applicant’s representative (AMERICAN LEGION):

2.  “This former member also 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 the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from attorney, dated April 4, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900202 - 900614	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900615		Date of Discharge:  930524

Length of Service (years, months, days):

	Active:    02  11  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  SH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.40 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SASM

Days of Unauthorized Absence:  141

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:

930103:	Applicant released from pre-trial confinement at the Naval Consolidated Brig to the custody of the Dorchester County Sheriff's Department and arrested for accessory after the fact to rape, kidnapping, and murder.  Applicant's case has not been adjudicated as yet, however, due to denial of request for reduction in bail on April 19, 1993, indications suggest lengthy incarceration.

930422:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930422:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  Applicant refused to sign.

930430:	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: SH3 (Applicant) is being processed by reason of misconduct due to commission of serious offenses.  By his own admission during interrogation by civilian authorities, and substantiated by the statements of others, SH3 (Applicant) failed to report the abduction, rape, and murder of M_ A_ M_ on 29 December 92.  SH3 (Applicant) offered succor to Miss M_'s murderers and is being charged by the State of South Carolina for aiding and abetting the crimes of kidnapping, rape, and murder.  I most strongly recommend that SH3 (Applicant) be separated as soon as possible under Other Than Honorable conditions.

930518:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Applicant discharged in absentia.

981221:	NDRB documentary record review Docket Number ND98-00420 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19930524 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.  In the Applicant’s case, under Naval Regulations a civilian conviction was not required as a basis for his administrative separation under other than honorable conditions due to the commission of a serious offense.  Those regulations permit administrative separation upon a finding that the offense occurred.  After a review of the evidence, the Applicant’s command determined that he had committed serious offenses that warranted administrative separation.  The Applicant was notified that he was being considered for administrative separation processing and advised of his various rights, including the right to counsel and the right to appear before an administrative separation board.  Following the Applicant’s refusal to acknowledge or elect these rights, the Applicant’s command recommended to the Bureau of Naval Personnel (BUPERS) that he be administratively discharged from the naval service under other than honorable conditions.  BUPERS concurred in this recommendation and directed the Applicant’s administrative separation. The fact that the charges against the Applicant were nol prossed after his discharge from the U.S. Navy neither established his guilt or innocence nor invalidated his administrative discharge.  The Applicant did not provide sufficient testimony and documentation to refute the presumption of regularity in this case.  Relief is therefore denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  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, to enhance employment opportunities, or for 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 of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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