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

 
ex-PH3, USN
Docket No. ND03-01239

Applicant’s Request

The application for discharge review was received on 20030717.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I waived my rights to have my case heard by an Admin Board due to improper advice given me by an LNC on board the USS GEORGE WASHINGTON CVN 73.

I was convicted at captain’s mast and the LNC told me that nothing would change if I requested an honorable discharge.  The female LNC told me that it would be a waste of my time and that if I waived it I could go home before Christmas and that I would not receive an honorable discharge.
I have been on active duty for four years and eleven months and had never before been to NJP or any court-martial.  My evaluations were good.

I should have gone before an Admin Board to seek a general discharge under honorable conditions”

Documentation

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

Letter from Counsel dated July 9, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970731 - 971228	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  971229		Date of Discharge:  021205

Length of Service (years, months, days):

	Active:    04  11  07
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  67

Highest Rate:  PH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.88 (9)	Behavior:  3.00 (9)		OTA:  3.05

Military Decorations:  None

Unit/Campaign/Service Awards:  NAVY”E”, GCM, NDSM, SSR, AFEM

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:

021122:	NJP for violation of UCMJ, Article 92:  (2 Specifications), Failure to obey a lawful general regulation, to wit: SECNAVINST 5300.26C, dated 971017, by wrongfully making physical contact of a sexual nature towards Photographer’s Mate Airman G___ I. O__, U.S. Navy, by reaching down her shirt and feeling her breast on or about July 2002 and by failure to obey a lawful order issued by Commanding Officer, USS GEORGE WASHINGTON, to wit: GWINST 3120.1 Chapter 25080, (paragraph 7d), dated 980831, by having sex with Photographer’s Mate Airman G____ I. O___, U.S. Navy, while in a locked compartment (3-180-O-Q) on board USS GEORGE WASHINGTON on or about July 2002, violation  and Article 134, Adultery with Photographer’s Mate Airman G__ I. O___, U.S. Navy, a woman not his wife on or about July 2002. 
	Award:  Forfeiture of $784.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

021123:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021123:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

021126:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his Commanding Officer’s Nonjudicial Punishment on 021122, for violation of the UCMJ, Article 92, (2 Specifications), Failure to obey a lawful general regulation, to wit: SECNAVINST 5300.26C, dated 971017, by wrongfully making physical contact of a sexual nature towards Photographer’s Mate Airman G___ I. O__, U.S. Navy, by reaching down her shirt and feeling her breast on or about July 2002; Failure to obey a lawful order issued by Commanding Officer, USS GEORGE WASHINGTON, to wit: GWINST 3120.1 Chapter 25080, (paragraph 7d), dated 980831, by having sex with Photographer’s Mate Airman G____ I. O___, U.S. Navy, while in a locked compartment (3-180-O-Q) on board USS GEORGE WASHINGTON on or about July 2002, and Article 134, Adultery with Photographer’s Mate Airman G__ I. O___, U.S. Navy, a woman not his wife on or about July 2002.  Commanding Officer’s comments, “He prayed on a junior subordinate because of her low self-esteem and feelings of inadequacy to convince her to have sex with him.”

021128:	COMCRUDESGRU TWO directed the Applicant's discharge under other than 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 20021205 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.   On 20021123, the Applicant was advised of his rights and elected not to consult with counsel certified under UCMJ Article 27B and elected to waive all rights.  He further certified he understood the least favorable characterization of service possible was other than honorable with a narrative reason of commission of a serious offense.  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, or that he was not afforded all due process during separation processing.  Applicant has not provided credible evidence of misconduct by separation personnel to overcome the presumption of regularity.  Relief denied.

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 nonjudicial punishment proceedings for violations of the UCMJ, to include two violations of Article 92, failure to obey a lawful order and one violation of Article 134, adultery.  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 is not warranted.

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), re-issued October 2002, effective 22 Aug 02 until Present, 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