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

ex-BMSN, USN
Docket No. ND03-01345

Applicant’s Request

The application for discharge review was received on 20030806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  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:

“ISSUES 1.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge, because four out of the nine chiefs wanted the department to handle it.  Also my executive officer didn’t want to listen to my witnesses because he had a basketball game to go to.

ISSUES 2:  I was so close to finishing my enlistment that it was unfair to give me a bad discharge.  I had 3 years and 6 months in with a good conduct medal and qualified half of my department and all of my qualifications.

ISSUES 3:  In my service records, personnel department put 2 forms that are not mine and doesn’t have my charges, which that is called a technicality.

ISSUES 4:  What my command said I did, I didn’t do because it was impossible for me to comment sexual harassment with two seamen standing under instruction next to me.  The seaman were SN B_ and SN B_ were my UI’s for boatswain mate of the watch.

ISSUES 5: I accepted the plea, because my JAG officer LT. P_ K_ told me that within 6 months to a year, my discharge will be automatically upgraded.  I believed her and I didn’t think it would affect my future, obviously I was wrong.  I didn’t know about the review board until I went to the Veterans Affair office.  The discharge has affected my life and my job opportunities; I applied for school safety in New York and got let down.

Thank you,

N_ R_ Jr. (Applicant)”

Documentation

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

Character reference, dated July 16, 2003
Character reference, dated June 20, 2003
Character reference, dated June 20, 2003
Character reference, dated June 20, 2003
Character reference, dated June 20, 2003
Character reference, dated June 19, 2003
Character reference, dated June 20, 2003
Character reference, dated June 20, 2003
Character reference, dated June 20, 2003
Character reference, dated June 27, 2003
Character reference, dated June 23, 2003
Character reference, dated June 18, 2003
Applicant’s DD Form 214 (2)
Fifty-three pages from Applicant’s service record, two pages Applicant’ has printed “not mine”

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950217 - 950226	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950227		Date of Discharge:  980617

Length of Service (years, months, days):

	Active:    03  03  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.00 (3)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SSDR, Letter of Appreciation

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:

980416:	NJP for violation of UCMJ, Article 92: Failure to obey lawful general order or regulation between February 1998 and April 1998, to wit: sexual harassment.
	Award: Forfeiture of $591 per month for 2 months, restriction and extra duty for 45 days, reduction to BMSN.  No indication of appeal in the record.
980506:	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 discharge under other than honorable conditions.    [Extracted from e-mail dated 980508.]

980522:	Commander, Submarine Group EIGHT directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990203:	Commanding Officer recommended 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 19980617 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).

Issues 1 and 4.  There is credible evidence in the record that the Applicant violated Article 92 of the UCMJ for sexual harassment.  Processing for separation is required for sailors who initiate unwanted physical contact of a sexual nature, which, if charged as a violation of the UCMJ, could result in a punitive discharge.  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.  Relief denied.

Issue 2.  The Applicant states it was unfair to give him a “bad discharge” when he had already served 3 years and 6 months.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violation of Article 92, thus substantiating the misconduct for which he was separated.  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 consider his discharge proper and equitable.  Relief denied.

Issue 3.  The Applicant claims that the personnel department misfiled paperwork in his record book, yet does not provide any evidence to support his claim.  Further, while he may feel that this error was a factor that contributed to discharge, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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. Relief denied.

Issue 5.  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.  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.  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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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 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