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

ex-GMSR, USN
Docket No. ND03-01245

Applicant’s Request

The application for discharge review was received on 20030718.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record 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 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.  “To whom it may concern,
I’m trying to become a Police Officer and with the discharge I currently have I don’t see it a possibility.  I respectfully request to have my discharged moved up to General under honorable or Honorable because of what I was charged for, in the civilian world would not even be a crime.  Please consider my request and I hope you make the choice which will help me become an officer of the law.  I did complete three and a half year which entitles me to the MGIB.  Thank You.”

Documentation

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

Copy of DD Form 214 
Letter from Applicant dated June 3, 2003
Copy of Travel Certificate
Letter from State Representative C_ B_ dated June 18, 2003
Copy of DD Form 214 (short version)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990629 - 990708	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  990709		Date of Discharge:  020327

Length of Service (years, months, days):

	Active:    02  08  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  3.00 (3)		OTA:  3.11

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NER

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:

020225:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: (7 Specifications), Violate a lawful general order; Specifications 1: Did onboard USS JOHN C. STENNIS (CVN-74), on or about 010131, violated a lawful general order, SECNAVINST 5300.26C, by attempting to unzip the coveralls of Airman S_ E_; by telling her that she cannot leave until she does something; by telling her to take off her shirt and show her breast; by exposing his penis and grabbing her had and asking her to rub his penis; Specification 2: Did onboard USS JOHN C. STENNIS (CVN-74), during the month of September 2000, violate a lawful general order by wrongfully asking Airman S_ E_ to engage in sexual acts with him in exchange for a swap of duty; Specification 3: Did onboard USS JOHN C. STENNIS (CVN-74), on or about November 1, 2001 , violate a lawful general order by wrongfully engaging in sexual intercourse with Aviation Ordnanceman Airman N_ R_; Specification 4: Did onboard USS JOHN C. STENNIS (CVN-74), on or about November 1, 2001 , violate a lawful general order by wrongfully engaging in sexual intercourse with Seaman Apprentice S_ W_; Specification 5 Did onboard USS JOHN C. STENNIS (CVN-74), on or about September 5, 2000, violate a lawful general order by wrongfully engaging in sexual intercourse with Airman S_ E_; Specification 6: Did onboard USS JOHN C. STENNIS (CVN-74), on or about January 3, 2001, violate a lawful general order by wrongfully engaging in sexual intercourse with Seaman J_ B_; Specification 7: Did onboard USS JOHN C. STENNIS (CVN-74), between June and August 2001 on divers occasions, violate a lawful general order by wrongfully engaging in sexual intercourse with Airman T_ T_.  Charge II: violation of the UCMJ, Article 107: Did onboard USS JOHN C. STENNIS (CVN-74), on or about November 6, 2001, make to NCIS Special Agent D_ F_ an false official statement, to wit: “I have never had sex with Seaman J_ B_, U.S. Navy, consensual or otherwise, “and I’ve never had sex with Airman S_ E_, U.S. Navy, consensual or otherwise”.  Charge III: violation of the UCMJ, Article 125: (2 Specifications), Sodomy, Specification 1: Did onboard USS JOHN C. STENNIS (CVN-74), between June and August 2001, commit sodomy with Airman T_ T_; Specification 2: Did onboard USS JOHN C. STENNIS (CVN-74), on or about September 5, 2001, commit sodomy with Airman S_ E_.  Charge IV: violation of the UCMJ, Article 134: (7 Specifications), Indecent exposure and adultery; Specification 1: Did onboard USS JOHN C. STENNIS (CVN-74), on or about January 31, 2001, while in the V-1 office, willfully and wrongfully expose in an indecent matter to public view his penis; Specification 2: Did onboard USS JOHN C. STENNIS (CVN-74), on or about September 15, 2001, wrongfully have sexual intercourse with Seaman Apprentice S_ W_, U.S Navy, a woman not his wife; Specification 3: Did onboard USS JOHN C. STENNIS (CVN-74), on or about November 1, 2001, wrongfully have sexual intercourse with Aviation Ordnanceman N_ R_, U.S Navy, a woman not his wife; Specification 4: Did onboard USS JOHN C. STENNIS (CVN-74), on or about January 3, 2001, wrongfully have sexual intercourse with S_ J_ B_, U.S Navy, a woman not his wife; Specification 5: Did onboard USS JOHN C. STENNIS (CVN-74), on or about January 31, 2001, wrongfully have sexual intercourse with S_ J_ B_, U.S Navy, a woman not his wife; Specification 6: : Did onboard USS JOHN C. STENNIS (CVN-74), on divers occasions between June and August, 2001, wrongfully have sexual intercourse with T_ T_, U.S Navy, a woman not his wife; ; Specification 7: Did onboard USS JOHN C. STENNIS (CVN-74), on or about September 5, 2001, wrongfully have sexual intercourse with Airman S_ E_, U.S Navy, a woman not his wife.
	Finding:  to Charge I and specifications 1 thru 6, thereunder, guilty.  Specification 7 thereunder charge I, dismissed.  To Charge II and the specification thereunder, guilty.  To Charge III and specifications 1 and 2 thereunder, guilty.  To Charge IV and specifications 1 thru 5 thereunder, guilty.  Specification 6 thereunder charge IV, not guilty, Specification 7 thereunder IV, guilty.     
	Sentence:  Confinement for 30 days, forfeiture of $741.00 pay per month for 1 month, reduced to E-1.
	CA action 020225:  Sentence approved and ordered executed.

020226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020226:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020304:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020309:	COMCARGRU SEVEN 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 20020327 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 contend “what I was charged for, in the civilian world would not even be a crime.”  As a member of the naval service, Applicant was subject to the provisions of the UCMJ.  Applicant’s actions involved several violations of the UCMJ that are considered serious offenses under separation regulations.  As such, the Board determined the discharge proper and equitable and a characterization of service of under other than honorable conditions was warranted.  The Applicant’s service record is marred by summary court-martial conviction thus substantiating the misconduct.  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, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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 the Applicant’s discharge proper and equitable.   

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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