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

 
ex-MM2, USN
Docket No. ND03-00666

Applicant’s Request

The application for discharge review was received on 20030304.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to misconduct.  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 20040212.  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 and the narrative reason 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.  My discharge was inequitable because it was based on a single incident in 5 ½ years of service in which all other individuals involved were retained in service, and other charges were dropped without prejudice before and/or during the summary court martial that was administered only to myself regarding this incident.  All other individuals were disciplined by commanding officer.  The summary court martial sentenced me to restriction and a fine due to my record and performance it was deemed no other action was necessary by military court.”

Documentation

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

Copy of DD Form 214
Copies of Evaluation Report & Counseling Record (5 pages)
Copy of Summary Court Martial Memorandum
Administrative Remarks (Leader Training Letter dated November 12, 1999)
Letter of Commendation dated May 19, 1998
Copy of Certificate of Completion (Enlisted Surface Warfare Specialist) dated February 18, 1999
Copy of Certificate of Reenlistment dated September 29, 1997
Copy of Honorable Discharge Certificate dated September 28, 1997
Copy of NATO Medal Certificate dated January 1999-March 1999 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941228 - 950725	COG
	Active:   USN 			950726 - 970928	HON

Period of Service Under Review:

Date of Enlistment:  970929		Date of Discharge:  001016

Length of Service (years, months, days):

	Active:    03  00  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  11			AFQT:  99

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)	Behavior:  3.50 (4)		OTA:  3.57 (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NUC, NM, AFEM, GCM

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:

970929:	Reenlisted on board USS ENTERPRISE CVN 65 for 6 years.

000622:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: Violate a lawful general order, to wit: SECNAVINST 1610.2, by engaging in hazing activities.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $200.00, restriction for 45 days.
	CA action 000718:  Sentence approved and ordered executed.
  
000720:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct as evidenced by you engaging in, attempting to engage in, or soliciting another to engage in homosexual act (s).

000720:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000926:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.  Commanding Officer’s comments (verbatim):  [On 29 May 00, MM3 B_ (victim) made a statement to Naval Criminal Investigative Service (NCIS) that MM2 P_ (Applicant) had hazed him.  ON 31 May 00, MM2 P_ admitted to duct taping MM3 B_  into a chicken wing position and tying him upside down in a machinery room.  He admitted that MM3 B_’s pants were pulled down and that he painted MM3 B_’s bare nipple and buttocks with copper anti-seize.  MM2 P_ pleaded guilty at summary court-martial on 22 June 2000 to violating a general order by engaging in hazing activities on board USS ENTERPRISE.  In addition, MM3 B_ stated that after drinking at MM2 P_‘s house on 22 February 2000, he blacked out and awoke to MM2 P_ performing oral sex on him.  On 12 June 2000, MM2 P_ made a statement to NCIS that he had performed consensual oral sex on MM3 B_.  MM2 P_’s misconduct indicates he does not have potential for further naval service, and he waived his right to an administrative board.  Accordingly, I recommend that MM2 P_ be discharged from the naval service for homosexual conduct with a characterization of other than honorable.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001016 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’s issue is without merit.  The Applicant’s service record is marred by homosexual behavior and by award of non-judicial punishment (NJP) for engaging in hazing activities.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an upgrade to his characterization of service.  Relief denied.

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

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, 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