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

 
ex-PC3, USN
Docket No. ND03-01449

Applicant’s Request

The application for discharge review was received on 20030909.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712.  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 was given an administrative separation Sept, 2, 02.  The reason I was given an administrative separation was because of a civilian charge that happened off base, off-duty hours.  Even though you are supposed to be innocent until proven guilty, I was still punished prematurely, so instead of receiving an honorable discharge I was given a general discharge.  I was told by my legal counsel that if my charges were dropped I could attempt to get my discharge updated.  After I was discharged in Sept. 02, 2002 several months passed before I found out the outcome of my case.  On Feb-3-2003 my attorney M_ W_ C_ contacted me and told me my charges were dismissed.  And I have enclosed in this envelope the official document from my attorney.  I don’t feel I should be punished when I have been proven innocent.  A matter like this could follow me my entire life.  I would greatly appreciate you assistance in this matter.”

Documentation

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

Copy of DD Form 214(member 4)
Letter from Attorney at Law, M_ W_ C_, dated March 20, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970618 - 970901	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  970902		Date of Discharge:  020901

Length of Service (years, months, days):

	Active:    05  00  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  Unknown

Highest Rate:  PC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NRMRGCM, SSDR(2), NER, NDSM

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/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

020403:	Applicant apprehended by the Gulfport police department, Gulfport, Mississippi and charged with sexual battery and child pornography.

020603:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020603:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020806:	Applicant waived his rights to an Administrative Discharge Board.

020815:	Commanding Officer’s comments:  PC3 P_ (Applicant) has no potential for future naval service.  PC3 P_(Applicant) was the most senior naval member present when a 15-year-old female performed as a stripper for 12 members of the naval service in a private residence off base.  The 23-year old was videotaped as the service member’s fondled and digitally penetrated her.  Local authorities apprehended the members and charged them with sexual battery and child pornography.  The arrest brought media attention and discredit upon the armed services.  Subsequent to the arrest, the incident was determined by local authorities not to be a “pornography ring” but a single instance of multiple partner consensual sex with a juvenile that was videotaped by one of the participants.  PC3 P_(Applicant), the most senior member present, received a “lap dance” from the 15-year-old which is included on the videotape.  PC3 P_(Applicant) did not appear interactive with the female, but made no attempt to stop her nor other members present who were fondling her during the lap dance.  PC3 P_(Applicant) behavior cannot be tolerated.  Although civil charges are still pending, I have found that PC3 P_(Applicant) actions and failure to act rise to the level of “deviant sexual behavior.”  I find by a preponderance of the evidence that PC3 P_(Applicant) actions are in violation of the UCMJ, Article 134: Indecent acts or liberties with a child and misprision of a serious offense (sodomy and attempted carnal knowledge).  Given the seriousness of the offenses I most strongly recommend that he be separated from the Naval service by reason of misconduct commission of a serious offense with an Other Than Honorable characterization of service. 

020815:	Commander, Navy Region Southeast directed 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 20020901 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 available 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:  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. 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.  The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  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 Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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