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

ex-CTMSN, USN  
Docket No. ND03-01415

Applicant’s Request

The application for discharge review was received on 20030827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue 1 - Conviction obtained without any corpus delecti and based on a coerced confession by DIS employee in violation of service members fifth and fourteenth amendment rights (see attachment and exhibits.

Issue 2 - The performance evaluations from 1990 to 1991 were based on job performance which was way out of my training and skill level as a CTM and provided the justification for discharge. (see attachment and exhibits)

Requested Board Action - 
Correct last DD-214 discharge administratively exhibit document 1 to reflect Block 24 Honorable instead of misconduct - other than honorable. Eliminate the narrative of "misconduct - due to serious offense" in Block 28.  Administrative restoration of rank from E3 back to E6 in Block 4 and 18 remarks section.  Additionally change the seperation and re-entry codes in Blocks 26 & 27 to reflect honorable discharge conditions and favorable re-entry code other than Re-4.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

3.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on April 29, 2004 and the following comments are hereby submitted:

We concur with the Applicant's contentions that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to General Discharge.”

Documentation

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

Applicant's DD Form 214 (2)
Explanation of issues (12 pages)
DIS report of investigation, dated February 26, 1990 (5 pages)
Letter to Applicant and wife from Florida Protective Services System, dated October 30, 1989
Applicant's DD Form 214 from previous enlistment (October 31, 1983 to December 28, 1987)
Applicant's DD Form 241 from previous enlisted (November 1, 1977 to October 30, 1983)
Letter from Applicant, dated August 15, 2003
Letter from Applicant, dated November 6, 2003 (9 pages)
Verification of past employment, dated October 17, 2003
Academic record from Pensacola Junior College, dated October 27, 2003
Amateur radio license, expires October 24, 2004
American Radio Relay League membership card, valid thru June 30, 2004
Certification of membership from Association of Old Crows, dated September 24, 2003
Statement, undated, unsigned
Letter to Applicant, dated October 28, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	761217 - 771031	COG
	Active:   USN			771101 - 831030	HON
		   USN			831031 - 871228	HON

Period of Service Under Review:

Date of Enlistment:  871229		Date of Discharge:  910718

Length of Service (years, months, days):

	Active:    03  06  20
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  90

Highest Rate:  CTM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (4)	Behavior:  3.15 (4)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (3), NAM, MUC, N&MCOSR (5), NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900209:	Applicant’s statement.

900309:	Psychiatric consultation: Impression: Axis I:  1. Occupational problem.  2. Pedophilia.  3. Adjustment disorder with mixed disturbance of emotions secondary to number 1 and 2 above.  Axis II: Tentative diagnosis of personality disorder with immature and antisocial components.  Recommendations: Case will be discussed with Family Advocacy.  Return for follow up appointment.

900417:	Applicant’s statement.

900427:	Psychological Evaluation: Recommend Applicant’s participation in the IMPACT program.  Applicant will be evaluated the first four to eight weeks to insure appropriately motivated to participate in the program.

900604:	Psychological Evaluation: The Child Abuse Subcommittee determined this case to be substantiated for sexual and physical abuse of M_ M_ (Applicant’s daughter) by P.O. M_ (Applicant) on 900210.  On 900410, it was determined by the CRS that P.O. M_ (Applicant) not be accepted as a treatment candidate for the Navy’s Incest Program, due to his prior history of pedophilia.

910219:	Family Advocacy Case Review Subcommittee has substantiated case for incest.  Applicant is not eligible for Family Advocacy Program because he is not considered amenable for treatment and has been diagnosed as a pedophile.  Recommend process for administrative separation due to commission of a serious sexual perversion.

910404:	Applicant delivered to civilian authorities 1300, 910404.

910405:	Applicant to unauthorized absence 0700, 910405

910504:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910504:	Applicant advised of rights and having consulted 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 and to submit a statement.

910610:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): CTM1 M_ (Applicant) reported to this command on 26 October 1987.  Petty Officer M_ (Applicant) has confessed to sexually abusing his daughter, who was then two years of age.  The sexual acts included vaginal fondling with his hands, penile fondling with ejaculation, and fellatio.  The abuse occurred on several occasions.  Also, Petty Officer M_ (Applicant) admits to having physically abused his daughter on one occasion in 1989.  He disciplined his daughter with a belt resulting in bruises on her buttocks and legs.  Reference (b) substantiated this case for incest.  Petty Officer M_ (Applicant) in not eligible for the Family Advocacy Program because he is not considered amenable for treatment and has been diagnosed as a pedophile.  Reference (c) directed processing for misconduct due to commission of serious offense.  Recently, Petty Officer M_’s (Applicant’s) daughter, now five years old, has been able to verify the abuse.  Local authorities arrested Petty Officer M_ (Applicant) on 4 April 1991 and he remains in confinement awaiting trial.  Enclosures (1) and (2) were served on Petty Officer M_ (Applicant) in jail.  CTM1 M_ (Applicant) returned the hand-written statement but failed to sign and date his statement.  Copies of all documents in this case have been forwarded to Petty Officer M_ (Applicant) in jail.  The seriousness of this offense warrants immediate discharge under Other Than Honorable Conditions.  Additionally, is requested that CTM1 M_ (Applicant) be discharged in absentia due to his confinement.

910626:	Civil Conviction:  violation of sexual battery upon a child under 12 and public nudity with a child under 12.
Sentence: State prison for 15 years, community service for 500 hours, no contact with any child under the age of 18, fine $234.00 and no chance for reduction of sentence.  Prison sentence suspended.

910708:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910718:	Applicant administratively reduced to E3.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910718 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, 2, and 3:  There is credible evidence in the record that the Applicant committed a serious offense.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment. The Applicant’s claim that the charges of incest and pedophilia are unfounded do not refute the presumption of regularity in this case.  There is no evidence in the record that the Applicant was denied due process by civilian or military authorities during the processing of his case.  Relief denied.

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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

Concerning a change in reenlistment code and restoration of rank, the NDRB has no authority to change reenlistment codes, restore rank 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.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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