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

 ex-TMSN, USN
Docket No. ND03-00988

Applicant’s Request

The application for discharge review was received on 20030527.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My is name is SEC T_ B_ (Applicant), (social security number deleted).  I'm writing this letter to support my DD Form 293.  After carefully reviewing all of the paperwork, I've found several inconsistencies.  I feel that if this case would have went to Courts-Martial like it was to in the beginning.  I would still be serving in the worlds greatest Navy.  Enclosed is documentation of letters to and from the Board of Corrections of Naval Records.  The Charge Sheet, Court Memorandums,  Request for an extension on my appeal, an answer to my appeal, evaluations, character statements,  Letters received from the CO, documentation of training off of the ship, counseling chits that I received, DD-214s, Letter to Senator C_ L_, Senator L_'s response, Copy of statements taken by NCIS, Letter to Congressman J_ C_, Letters from my 1st Sgt., CO, and Battalion Commander, Letters to the Board, Copies of my Army Achievement Certificates, Certificate of Completion of Quartermaster School. With all of the discrepancies that I’ve noted, I don't see how none of this was brought up at the Captain’s Mast.  At the time that this case was slated for Courts-Martial, I was to be charged with three counts of Rape, Carnal Knowledge, and Indecent Acts. At the Captain's Mast I was only charged with the one count of Carnal Knowledge Because of what I said in my statement, (page 19 highlighted in blue). According to the Manual for Courts-Martial, The definition of Carnal Knowledge is sexual intercourse under circumstances not amounting to rape, with a person who is not the accused spouse and who has not attained the age of 16yrs.  Any penetration, however slight is sufficient to complete this offense.  It is a defense, however the accused must prove by a preponderance of evidence that at the time of the act of sexual intercourse the person whom the accused committed the act of sexual intercourse with was at least 12 yrs. Of age, and the accused reasonably believed that this same person was at least 16 yrs of age. Located in Part IV page IV-67 #(2).  According to S_’s statement, my statement, and the memorandum that was given to the defense counsel at that time, should prove that S_ was at least 12yrs of age and that I had reason to believe that she and her friends were 16yrs of age or older. The letter that was given to my defense counsel is located on page 17.  This incident happened almost six years ago and I have since then matured into a more stable young man.  Since getting out of the Navy, I been in the Army National Guard for almost four years and been nominated for Soldier of the Year twice. I received three Army Achievement Medals, A Broad Sword and A Reserve Components Achievement Medal. I achieved the rank of SPC (E-4 ) and I’m soon to be promoted to SGT.  I would like the opportunity to finish my military career on active duty.  After reviewing all of the information that I've submitted, I hope the board sees fit to give me a second chance at a successful military career. I’m asking the board to change my discharge from a General Under Honorable Conditions to a regular Honorable Discharge.  I also would like my RE code upgraded to at least 2 or 3.

Issue 1 is my request chit to see the Commander and the note that was attached by LT M_.  Even though I submitted a chit I still was not able to see the Commander.  Exhibits 1 and 2

Issue 2 is my appeal to Capt T_ B_ C_ Jr, who found inconsistencies with two of the three specifications that I was charged with, and a copy of the letter that was given to my defense counsel Lt. L_.  Exhibits 16, 17 and 18.

Issue 3 is my Evaluation Reports and Counseling Reports that I received since checking onboard the Cushing until I left.  See how my points went from 3.5 to 2.14.  Although some of the trait scores have changed, the comments on performance have discrepancies to what Chief B_ and the rest of my chain of command says about my behavioral problems.  If I had an attitude problem how could I meet the standards in the leadership portion.  Exhibit 28 and the personal job accomplishments/initiative section.

Issue 4 is statements of character from sailors that were outside of my division who I came into contact with.  See how everyone gave just about the same marks and felt that the Navy should have retained me.

Issue 5 three certificates that were given to me by the CO, P. D. M_ for Outstanding Physical Readiness, Food Service Attendant Of The Month, and a Letter Of Appreciation for volunteering to help with the Hawaii Special Olympics.  I feel that shows the can do attitude and initiative.

Issue 6 is the discrepancies that are highlighted in A_'s statement.  She stated that she met M_ T_, W_, and myself at the Walmart in Mililani.  I have never been to the Wal-Mart nor have I been to Mililani.  She also stated that after T_ had sex with her that I forced myself inside her and that myself, W_, and T_ were hard to fight off.  I find it hard to believe that she would say that she could fight off M_, but not myself.  At that time I only weighed 145pds, which are only 18pds more than A_ weighed at that time?  I believe that the other sailors weighed more than 165pds which is 20 pounds more than I weighed so how come she wasn't able to fight me off when I weighed the least?  Exhibits 66 through 68.

Issue 7 is the discrepancies that are highlighted in J_'s statement.  She stated that she met W_ T_, T_ C_, and a bunch of other sailors on the strip in Waikeke.  I was not one of those sailors.  She also stated that P_ T_, and I lined up A_.  She also gave my whole name in the deposition to Special Agent F_ of the NCIS.  I wonder how she got my name because were all on a first name basis and I never gave nor did I say my last name in front of her or her friends Exhibits 68 and 69

Issued 8 is the discrepancies that are highlighted in S_'s statement.  She stated that she asked P_ if the other sailors had sex with her and P_ told her that W_, T_ and myself lined her up.  A_ told her that W_ had sex with her while she was passed out and that myself and T_ stood by waiting our turns. Which is conflicting because in A_'s  statement, she stated that W_ and S_ had consensual sex and then T_ had sex with her.  She did not mention my name at all in exhibit 66.  In P_'s statement when S_ asked him did everyone line her up? He replied no one just W_.  In Exhibit 77.  Also in S_'s statement she stated that she met P_ and me at the barracks and not at the strip in Waikeke or the Wal-Mart in Mililani.  Exhibits 70 through 72.

After all these discrepancies were found and noted by me, I believe that I would have had a better chance at the Court-Martial.  I believe any defense counsel would have questioned these discrepancies and had my record cleared of this incident.

Respectfully, T_ B_ (Applicant) SPC MIARNG”  

Documentation

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

Copies of DD Form 214 (Member – 4 & Member – 1) 
BCNR ltr to Applicant dtd Aug 31, 2000
Applicant’s undated ltr to BCNR (2 pages)
BCNR’s Decision to Applicant dtd April 29, 1999 (3 pages)
Applicant’s undated ltr to BCNR (2 pages)
Copies of service record information, including NCIS Report (107 pages)
Applicant’s undtd letter to the Board
Applicant’s Department of the Army Achievement Medal Certificate (21 Jun thru 1 Jul 00)
Applicant’s Department of the Army Achievement Medal Certificate (11 Aug thru 21 Aug 01)
Certificate of Completion 77F10, Fort Lee, Virginia 
Applicant’s undtd ltr to the Board
9 Statements of Character

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960117 - 960123	COG
	Active:   USA			941102 - 950202	ELS (Uncharacterized)

Period of Service Under Review:

Date of Enlistment:  960124		Date of Discharge:  980313

Length of Service (years, months, days):

	Active:    02  01  20
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rate:  TM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.33 (3)		OTA:  2.88

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy Battle “E” Ribbon, AFEM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970807:	NIS report.  [Provided by the Applicant.]

980123:	NJP for violation of UCMJ, Article 120 (3 Specs):  Carnal knowledge.
	Award:  Restriction and extra duty for 45 days (45 days restriction suspended for 6 months), reduction to E-3.  Appealed.  

980130:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980206:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980223:	Appeal granted in part and Specifications 1 and 3 were dismissed.

980302:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward a chief petty officer.
	Award:  Forfeiture of $539.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

980309:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.

980309:	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.

980310:	Commanding Officer, USS CUSHING, recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  

980310:	Commander, Naval Surface Group MIDPAC, advised command that Applicant cannot be processed for a pattern of misconduct since he was not issued an Administrative Remarks (Counseling and Warning), but did not adversely affect the Applicant and re-notification is not required.  Commander, Naval Surface Group MIDPAC 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 980313 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).

Issues 1-5 and 7:  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.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate 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.  His service record is marred by award of nonjudicial punishment (NJP) on two separate occasions thus substantiating the misconduct.  
The Applicant introduced no decisional issues for consideration by the Board.

Issues 6 and 8:  The Applicant's discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge and 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.  The Applicant was afforded the appropriate due process during the processing of his case.  The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record.  Aggravating facts noted by the Board included the award of two nonjudicial punishment, carnal knowledge and insubordination conduct toward a chief petty officer.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 18, effective 
12 Dec 97 until 29 March 2000, 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