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

 
ex-BM3, USNR
Docket No. ND03-01391

Applicant’s Request

The application for discharge review was received on 20030820.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing review before the Board in the Washington National Capital Region.  The Applicant listed Private 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 discharge review was conducted in Washington, D.C. on 20040617.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Though the Applicant indicated on his application to “see attached letter” for issues, no letter was attached.  In addition, the civilian counsel listed on the application provided no issues.  

Documentation

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

Reference Letter from T__ H__, Associate Head Coach IUPUI Basketball dated May 22, 2003
Letter of Credibility dated September 23, 1999
Character Reference Letter 
Character Statement date October 19, 1999
Character Reference Letter from PN2 J___ E. J____
Character Reference Letter from EMC (SW) S___ K. A___
Letter from Detailed Defense Counsel R___ A. B___ dated August 14, 2001
Newspaper Articles [2 pages]
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		930730 - 930919	None
	Active:   USN			930920 - 970911	HON

Period of Service Under Review:

Date of Enlistment:  970912		Date of Discharge:  000714

Length of Service (years, months, days):

	Active:    02  10  03
	Inactive:  00  00  00

Age at Entry:  22			Years Contracted:  4 (5 month extension) 

Education Level:  12			AFQT:  50

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Pistol Expert, M-14 Rifle Medal, SASW, HSM

Days of Unauthorized Absence:  None 

*No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

970912:	Reenlisted at NAVCHAPGRU WILLIAMBURG VA for 4 years.

000118:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Charge I: Article 92: (2 specifications), Specification 1: On diverse occasions from about March 1998 to about July 1999, was derelict in the performance of those duties in that he willfully failed to remain alert and awake during working hours; Specification 2: On diverse occasions from about March 1998 to about July 1999, was derelict in the performance of those duties in that he willfully failed to change into the proper uniform of the day.  Charge II: violation of UCMJ, Article 134: (12 specifications), Specification 1: On diverse occasions from about March 1988 to about December 1998 commit indecent assault upon Yeoman Seaman K___ D. C___, a person not his wife, by hugging her with intent to gratify his sexual desires, Specification 2: On diverse occasions from about November 1998 to about July 1999 commit indecent assault upon Fireman Apprentice M___ L___ C___, a person not his wife, by hugging her with intent to gratify his sexual desires; Specification 3: On diverse occasions from about December 1998 to about July 1999 commit indecent assault upon Seaman K___ A. H___, a person not his wife, by hugging her with intent to gratify his sexual desires; Specification 4: On or about 2 July 1999, commit an indecent assault upon Seaman Apprentice C___ L. B___, a person not his wife, by touching the arm and leg and by grabbing her hand and pulling it towards his groin area, with intent to gratify his sexual desires; Specification 5: On or about February 1999 to April 1999, commit indecent assault upon Fireman Apprentice M___ L. C____, a person not his wife, by grabbing her legs while Signalman Second Class C__ D. N___ grabbed her arms, then lifting her onto the navigation table, spread her legs apart, and attempted to place his body between them, while Signalman Second Class C__ D. N___ held her with intent to gratify his sexual desires; Specification 6: On or about July 1998 to September 1998, while in the chief petty officer passageway of Display Ship BARRY, willfully and wrongfully expose in an indecent matter to public view his penis; Specification 7: On or about June 1998, while in Boatswain’s Mate Third Class C___’s office onboard Display Ship BARRY, willfully and wrongfully expose in an indecent matter to public view his penis; Specification 8: On or about 27 June 1999, wrongfully entice Seaman Apprentice C____ L. B___ to engage in an act of sexual intercourse for hire and reward with persons to be directed to her by the said Boatswain’s Mate Third Class M__ R. C___; Specification 9: On or about 27 June 1999, wrongfully solicit Seaman Apprentice C____ L. B___ to violate the UCMJ, to wit: Article 134, paragraph 97, pandering and prostitution, by asking her to have intercourse with Signalman Second Class C__ D. N___’s nephew, in exchange for exemption from attending academic skills class, which she was required to attend; Specification 10: DISMISSED; Specification 11: On diverse occasions from about February 1999 to about July 1999, commit an indecent assault upon Seaman K___ A. H__, a person not his wife, by grabbing her hand and pulling it toward his groin area, with intent to gratify his sexual desires; Specification 12: On diverse occasions from about March 1998 to about July 1999, commit an indecent assault upon Yeoman K___ D. C__, a person not his wife, by grabbing her waist from behind and imitating having sexual intercourse with her, with intent to gratify his sexual desires. Additional Charges, Charge I: Violation of the UCMJ, Article 92: On diverse occasions from February 1998 to July 1999 violate a lawful general order to wit: SECNAVINST 5300.26B dated 6 January 1993, by wrongfully making sexual comment such as “when can I hit that”, “when can I eat that”, “give me some cut up” and “when am I gonna get that cat”, to FA M___ L. C___, SN S___ B. L. S___, SA L___ R. S___, YNSN K___ D. C___, and SN K___ A. H___.  Charge II: violation of the UCMJ, Article 134: Was from November 1998 to July 1999, on one occasion, as a result of wrongful previous overindulgence in intoxicating liquor, incapacitated for the proper performance of his duties.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

000512:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

000714:	Applicant discharge Under Other Than Honorable Conditions in lieu of trial by court-martial.

000809:	Commanding Officer advised BUPERS of Applicant’s discharge under other than honorable conditions by reason of Separation in Lieu of Trial by Court Martial.  Commanding Officer’s comments:  On 19 February 1999, BM3 M___ C___ reported onboard USS BARRY, Naval District Washington, Washington DC.  On 26 August 1999, charges were preferred for violation of the UCMJ, 2 specifications of Article 92 and 12 specifications of Article 134.  On 13 October 1999, his charges were recommended for General Court-Martial via Article 32 hearing.  On 24 November, additional charges were preferred for violation of the UCMJ, 1 specification of Article 92 and 1 specification of Article 134.  Trial was scheduled on 20 March 2000.  On 18 January 2000, BM3 C___ submitted his request for Administrative Separation in Lieu of Trial by Court-martial.  On 27 April 2000, his request was approved by Commandant, Naval District Washington, with the conditions that he cooperate with the government counsel.  The characterization of his service upon discharge was awarded to be Other Than Honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000714 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The Applicant introduced no decisional issues for consideration by the Board.

The applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of three violations of Article 92 and thirteen violations of Article 134 of the UCMJ.  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.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and, certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficent documentation for the Board to consider.  Therefore, no relief is appropriate.

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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, failure to obey order a lawful order upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C.  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.  

D.  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.

E.  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