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

 ex-DT3, USNR
Docket No. ND03-00862

Applicant’s Request

The application for discharge review was received on 20030421.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel.  The Applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington D.C. area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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.  “I am attending the University  South Carolina Beaufort, my major will be business management.  I am a night foreman at Beaufort Gazette pressroom.  I voluntary three time a week at Naval Dental Center.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS:

2.  “The Applicant has a strong letter of support for upgraded from Capt L. P_ USN.  In addition during post service, he achieved the Dean’s List honors for the fall of 2002 semester as the University of South Carolina, furthermore he has study employment.  We as the board to consider the above in your decision.  We concur that the Applicant discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for upgrading his discharge to Honorable.”

Documentation

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

Letter of Support from Capt L. P_, dated October 7, 2002
Copies of DD Form 214 (2)
Letter of Congratulation for Dean’s List honors dated February 7, 2002
Employment Reference Letter dated February 24, 2003.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  901220		Date of Discharge:  950813

Length of Service (years, months, days):

	Active:    04  05  08
	Inactive:  00 02  18

Age at Entry:  26			Years Contracted:  8 (48 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  DT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  3.48 (5)		OTA:  3.96

Military Decorations:  None

Unit/Campaign/Service Awards:  JUM, AFEM, NAM, SAM, NDSM, LOA(4)

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:

910311:	Ordered to active duty for 24 months under the Seaman Apprenticeship program.

910315:	Retention Warning:  Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	 
911114:	NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ Article 134: Disorderly conduct.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940603:	Retention Warning:  Advised of deficiency (Actions and/or comments which may be construed as inappropriate behavior by member of the opposite sex), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950517:	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, (a) Your indecent assault on DT3 A_ W. W_, USN, in about September-October 1993, (b) Your sexual harassment of DA A_ R. P_, USN between January and April in violation of SECNAVINST 5300.26B, (c) Your sexual harassment of DN J_ P. F_, USN, in March and April 1994 in violation of SECNAVINST 5300.26B, (d) Your kidnapping, assault and indecent assault on DN J_ V. N_, USN, on 9 November 1994, and your assault on DN J_ V. N_, USN, on 10 November 1994.

950517:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950601:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended a general under honorable conditions discharge.

950803:	Commanding Officer recommended discharge with a general under honorable conditions by reason of misconduct due to the commission of a serious offense. 

950808:	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 19950818 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment. 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.  An upgrade to an honorable discharge would be inappropriate.  Relief denied.

Issue 2:  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  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