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

  ex-EN3, USN
Docket No. ND03-00361

Applicant’s Request

The application for discharge review was received on 20021227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031215.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was a good sailor when I was in the navy I made one mistake and paid for it at my court-martial the judge only give me 90 day in the brig with no discharge but at the temporary process until the commander said I sign a paper at court martial saying I was recommend for other than honorable discharge, I don’t remember anything like that for my lawyers.  i there any change me rejoining the armed forces to service my country again.   Thank you very much for your time D_ L S_ (Applicant).”

Documentation

Only the service record was reviewed, as the medical record could not be obtained and the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		890608 - 890626	To report active duty
	Active:   USNR		890627 – 920624	HON (To enlist USN)
	Active:   USN 			920625 - 971120	HON

Period of Service Under Review:

Date of Enlistment:  971121		Date of Discharge:  010301

Length of Service (years, months, days):

	Active:    03  03  12 (Doesn’t exclude confinement time.)
	Inactive:  None

Age at Entry:  28			Years Contracted:  2 (30 months extension)

Education Level:  12			AFQT:  32

Highest Rate:  EN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3)	Behavior:  3.67 (3)		OTA:  3.76 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(2), NDSM, NUC, SWASM, NAM(2) KAWAIT LIBERATION MEDAL, JMUA, NAVY “E” RIBBON (3), CAR, AFSM, CGM(3), 9MM PISTOL MARKSMAN, ESWS, EAWS

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:

971121:	Reenlisted for 2 years at SBU-20, NAB Little Creek, VA

991121:	Extended for 30 months.

001122:	General Court Martial 
	Charge I:  violation of the UCMJ, Article 120.
Specification:  Carnal knowledge with a S_ G_ on divers occasions between 1 Aug 98 and 11 Sep 98
Charge II:  violation of the UCMJ, Article 128.
	Specification:  Unlawfully grab S_ G_ a child under the age of 16 years of age on or about 9 Sep 98.
	Findings:  to Charge I and specification thereunder, guilty; to Charge II, withdrawn.
	Sentence:  Confinement for 90 days and reduction to E-4.
	CA 000000:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

001122:	To confinement.

001205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001205:	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.

001211:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial on 22 Nov 2000.  Commanding Officer’s comments (verbatim):  “EN3 S_ (Applicant) agreed to waive the administrative board.  Based on the serious of the offense, I recommend EN3 S_ (Applicant) be separated from the naval service with an Other than Honorable discharge.” 

010116:	CNP recommended to ASN(M&RA) that Applicant be discharged with an Other Than Honorable discharge for misconduct due to commission of a serious offense.  CNP further advised that the Secretary of Navy’s approval is required an Other Than Honorable characterization of service because the Applicant’s general court-martial did not impose a punitive discharge.

010203:	Released from confinement.

010220:	ASN(M&RA) approved the discharge action.

010223:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and directed the separation code of “HKL”, assault upon a child.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010301 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 Board recognizes that the Applicant is remorseful for the poor judgment he exercised during his military career.  However, the Board will not recharacterize a former member’s discharge because he realizes he made mistakes while serving his country.  The Board will only change a discharge if its issuance is determined to have been inequitable or improper.  Relief denied.

The Applicant is reminded that he signed a pre-trial agreement stating, “That my defense counsel has advised me that I may be processed for an administrative discharge which may be under other Than Honorable Conditions and that I may therefore be deprived of virtually all veteran’s benefits based upon my current period of active service”.  
Subsequent to the Applicant’s court martial and 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.  While the Applicant did not elect counsel, he was properly processed for discharge due commission of serious offense under other than honorable conditions.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 "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