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

 
 ex-HN, USN
Docket No. ND03-00433

Applicant’s Request

The application for discharge review was received on 20030122.  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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I believe my discharge was inequitable because of the enclosed reasons (statement of material contentions)

Also I believe my discharge improper because of the years I had served in the U.S.N. (12 yrs) 2 good conducts, many, many, awards, served in the Gulf War from 20 Aug 90 –11 Mar 91.  I was a 3.8-4.0 sailor and because of a misdemenor with the civil authorities I got discharged.  When my country needed me I was there, but when I needed the Navy’s help they throw me out and call me “scumbag” and strip me of everything I had worked for those 12 + years.  Also the JAG officer at Camp Pendleton Naval Hospital did nothing to support or defend me legally.

I had no legal support the only thing I could do was “get out” “Just kick the child molester out” (many people not knowing what exactly happened) so I waived all my rights and got out.

Because of the unfair treatment of the U.S.N in my behalf I’m requesting I be reinstated of my rank, rate, and an Honorable discharge.  It’s the least my country can do for me for all that I have done for it.

Please review my record and see the great “Sailor” I was before I was unfairly treated by U. S. Naval Officers and enlisted as well.

Under current standards, I would not receive the type of discharge I did.

My conduct and efficiency ratings/behavior and proficiency marks were mostly real good.

I received many awards and decorations.

I had combat service.  1st FSSG, 1st MED-BN, BRAVO COM. Desert Shield/Storm 20 Aug 90 – 11 Mar 91

My record of promotions showed I was generally a great service member up unto this citation.

There were other acts of merit.

I had 2 prior Honorable Discharge 10 Aug 84 – 09 Aug 88 & 12 Aug 80 – 09 Aug 84.

I have been a great citizen since discharge.

My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses.  Misdemeanor

Medical or physical problems I had impaired my ability to serve.  I had/have Gulf War Syndrome  But I was told time and time again you have “Psych” problems.

The punishment I got was too severe compared with today’s standards.

The punishment I got at discharge was too harsh–it was much worse than most people got for the same offense.

My command abused its authority when it decided to discharge me and decided to give me a bad discharge.  This discharge was based on what I had done and not my job performances for the past 12 years.  I was unfairly treated.

I was called a “scumbag” by LT. S_ R_ S_ (acting O.I.C.) in the presense of HN S_. I believe

In my opinion LT. S_ was unprofessional as an U.S. Navy officer.  When it came to my citation and how it was handled.  I understand that later LT. S_ had been discharged for fraternization with an officer of the same clinic after I had left.

Thank you”

Documentation

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

Applicant’s DD Form 214 (3)
Twelve pages from Applicant’s service
Registration card from Board of Pharmacy, valid until January 31, 1995
License from State of Nevada for Laboratory Assistant
License from Nevada State Board of Pharmacy
Character reference, dated October 13, 1998
Character reference, dated October 8, 1998
Character reference, dated February 15, 1997
Civil court papers, dated September 2, 1993 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	800805 - 800811	COG
	Active:   USN			800412 - 840809	HON
		   USN			840810 – 880809	HON
	Inactive: USNR (DEP)	890417 – 890423	COG
	Active:   USN			890424 - 920409	HON

Period of Service Under Review:

Date of Enlistment:  920410		Date of Discharge:  940623

Length of Service (years, months, days):

	Active:    02  02  14
	Inactive:  None

Age at Entry:  39			Years Contracted:  3

Education Level:  12			AFQT:  54

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.60 (3)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM with 2 Bronze Stars, NEM, HSM, NAM with Silver Star, FMFR with Bronze Star, SSDR with Bronze Star, NDSM, NUC, KLM

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 3630600.

Chronological Listing of Significant Service Events:

930903:	Civil Conviction:  Municipal Court of San Bernardino, CA for violation of sexual battery.
Sentence:  Jail for 8 days, probation for 2 years, community service for 100 hours.

930929:	Psychiatric evaluation: Applicant did not evidence a pattern consistent with pedophilia.  Diagnosis: Other life circumstance problems.

940422:	Family Advocacy Case Review Subcommittee has substantiated this case for child sexual abuse.  Applicant is not eligible for the Family Advocacy Program as the treatment requirements are beyond the scope of treatment program.  Applicant was hostile and uncooperative at all attempts to engage him in a therapeutic process.

940531:	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 perversion and misconduct due to civil conviction.

940531:	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.

940607:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense – sexual perversion and misconduct due to civil conviction.

940615:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense – sexual perversion.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940623 under other than honorable conditions for misconduct due to commission of a serious offense – sexual perversion (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 disagrees with the Applicant's contention that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a civil conviction.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.  

The Applicant indicated that his punishment was too severe with today’s standards and that under current standards he would not have received an Under Other Than Honorable Condition discharge.  The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions.  Today’s standards for discharge due to a commission of a serious offense normally warranted an Under Other Than Honorable Condition discharge.  This issue is without merit.  Relief on this basis is denied.

There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review and legal counsel.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant was afforded the appropriate due process during the processing of his case.  Relief denied.

The NDRB noted an administrative error on the DD Form 214.  Block 18 did not reflect the Applicant’s previous years of honorable service.  The Board notified the Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.  

The NDRB has no authority to reinstate an individual into the Naval Service or any other branch of the Armed Forces.  The Applicant is eligible to petition the Board for Correction of Naval Record using the DD Form 149.

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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As this time, the Applicant has not provided any documentation for the Board to consider.  Therefore, no relief is appropriate.

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 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