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

 ex-DC3, USN 
Docket No. ND03-00546

Applicant’s Request

The application for discharge review was received on 20030213.  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 20040408.  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: GENERAL (UNDER 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.  MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON ONE ISLOATED INCIDENT IN 17 YEARS OF SERVICE WITH NO OTHER ADVERSE ACTION”.

Documentation

Only the service record was reviewed, as the Board could not locate the Applicant’s medical record.  The Applicant provided the following document for consideration:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	790725 - 790726	COG
	Active:   USN			790727 - 830726	HON
		   USN			830727 – 880223	HON
		   USN			880224 – 930519	HON

Period of Service Under Review:

Date of Enlistment:  930520		Date of Discharge:  961023

Length of Service (years, months, days):

	Active:    03  05  04
	Inactive:  None

Age at Entry:  31			Years Contracted:  5

Education Level:  12			AFQT:  33

Highest Rate:  DC1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)	Behavior:  3.3 (2)		OTA:  3.6   (4.0 evals)
                         3.0 (1)		                   1.0 (1)			2.43 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(3), NAM (w/Gold Star), Navy “E” Ribbon (w/2 Silver “E”), NDSM, ESWSI, AFEM, CAR, HSM, CGSR, SSDR (w/1 Silver Star & 2 Bronze Stars)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930520:	Reenlisted for 5 years on-board USS VINCENNES (CG 49).

931208:	Executive Officer, Naval Amphibious Base, Coronado, advised Applicant that he was not in compliance with Navy Physical Fitness Standards due to being 29% body fat and ordered to report to the Command Physical Fitness Coordinator for enrollment in the Command Physical Conditioning Program.

941114:	Counseling:  Advised of deficiency (failing the PRT/bodyfat cycle for the second time), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

9504:	Counseling:  Advised of deficiency (failing the PRT/bodyfat cycle for the third time), notified of corrective actions and assistance available, including a waiver request, advised of consequences of further deficiencies, and issued discharge warning.  [Exact date unreadable]

950516:	Applicant request waiver of administrative separation processing for six months to meet the Navy’s physical readiness Standards.

950719:	CO, NAB, Coronado, recommended to BUPERS approval of Applicant’s request.

950818:	U.S. Naval Criminal Investigative Service Report contained in service record.

951002:	BUPERS approved the waiver, but advised Applicant must meet body composition standards by the end of the six months and the waiver applies only to administrative separation for body composition reasons.

9510:	Counseling:  Advised of deficiency (failing the PRT/bodyfat cycle for the third time), notified of corrective actions and assistance available, including a waiver request, advised of consequences of further deficiencies, and issued discharge warning.  [Exact date unreadable]

951128:	BUPERS advises command, based on NCIS investigation, may involve mandatory administrative separation or are serious enough to warrant command attention.  Further requested the command advise action taken.

960322:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 92, (13 Specifications):  Violated a lawful general order.
	Specification 10:  On or about Mar 94 to on or about Nov 94, violate a lawful general order, OPNAVINST 5370.2A, by fraternizing with SM2 E_ B_ by communicating in sexually explicit language.
	Charge II:  violation of the UCMJ, Article93:
	Specification:  On or about 1 Dec 94 to on or about 10 Dec 94, maltreat HT2 P_ B_, a person subject to his orders by saying to her, “What will you do for me if you don’t have to go to the Auxiliary Security Force?”
	Charge III:  violation of the UCMJ, Article 125:
	Specification:  On or about Jul 94, commit sodomy with SM2 E_ S_.
	Charge IV:  violation of the UCMJ, Article 134 (8 Specifications).
	Findings:  to Charge I and specification 10 only - guilty.
	To Charge II and specification thereunder – not guilty.
	To Charge III and specification thereunder – not guilty.
	To Charge IV and specifications 1 – 8 – not guilty.
	Sentence:  Reduction to pay grade E-4 and Letter of Reprimand.
	CA 960624:  Sentence approved and ordered executed.

960328:	Counseling:  Advised of deficiency (first formal recorded and documented absence from the Command Conditioning Program), notified of corrective actions and assistance available.

960624:	Punitive Letter of Reprimand issued, and Applicant acknowledged receipt of letter on 960626.

960626:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial conviction on 22 March 1996 for fraternization and weight control failure as evidenced by failure to successfully pass the Physical Readiness Standards due to failure of three cycles (Oct 94, Apr 95, and Apr 96).

960626:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960805:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a serious offense, found that the Applicant did commit weight control failure of three cycles (Oct 94, Apr 95 and Apr 96), and by unanimous vote, recommended retention.

960815:	Commanding Officer, not concurring with the Administrative Discharge Board, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and weight control failure.  

960920:	BUPERS recommended to the Assistant Secretary of the Navy (M&RA), despite the recommendation of the Administrative Board, that Applicant be discharged by reason of misconduct due to commission of serious offense as evidenced by his SPCM conviction 22 Mar 96 for violation UCMJ, Article 92, Fraternization and for Weight Control Failure as evidenced by his failure to successfully pass three physical readiness test.

961002:	Assistant Secretary of the Navy (M&RA) approved Applicant’s discharge with a characterization of service of General by reason of misconduct due to commission of serious offense.

961011:	BUPERS directed the Applicant's discharge with a General (under 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 19961023 with a General (Under 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 states his discharge was based on one isolated incident in “17 years.”  Despite a service member’s prior record of service, certain offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by special court martial for violation of UCMJ article 92, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 9, effective 
22 Jul 94 until 02 Oct 96, 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