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

  ex-HM2, USN
Docket No. ND04-00171

Applicant’s Request

The application for discharge review was received on 20031107.  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 20040715.  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: MILPERSMAN, Article 1910-142.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Plead innocent to Allegations made by my wife

2.  No conviction charges drooped

3.  Requested Navy Representation for civilian criminal procedure.  I did not get help from Navy.

4.  After 105 days of being incarcerated I agreed to a discharge so my children could get separation assistance.  During that time I was listed AWOL and did not receive pay or benefits.

5.  I had a good service record before the allegations & should speak highly as my personal integrity.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870826 - 880615	COG
	Active:   USN			880616 - 910915	HON
		   USN			910916 - 970914	HON

Period of Service Under Review:

Date of Enlistment:  970915		Date of Discharge:  001222

Length of Service (years, months, days):

	Active:    03  03  08
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  43

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)	Behavior:  3.25 (4)		OTA:  3.71

Military Decorations:  None

Unit/Campaign/Service Awards:  KLM, SASM (2), NDSM, AFSM, SSDR, HSM, GCM (3), NUC (2), BER (2), FMFR, JMUC, N&MCAM

Days of Unauthorized Absence:  105

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970915:	Applicant reenlisted for 6 years.

000804:	Applicant arrested by St Mary’s Police Department, Camden County, GA on charges of incest, rape and two counts of aggravated child molestation.  [Extracted from Commanding Officer’s letter dated 001215.  Start and end dates of incarceration were not found in the service record.]

000919:	Applicant informed by Commanding Officer of Family Advocacy Program Case Review Committee’s determination of substantiation of child sexual abuse.  According to the Matrix the level of abuse was determined to be at the 5th degree.

001206:	Applicant indicted on aggravated child molestation (2 counts) and child molestation (3 counts).  [Extracted from Commanding Officer’s letter dated 001215.]

001212:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001212:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001215:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense - [child molestation].

001219:	BUPERS 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 20001222 under other than honorable conditions for misconduct due to the 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 5.  Sailors may be separated based on the commission of a serious military 
or civilian offense, when the specific circumstances of the offense warrant separation and 
the offense would warrant a punitive discharge for the same or a closely related offense. 
The commission of a serious offense does not require adjudication by non-judicial or 
judicial proceedings.  However, the offense must be substantiated by a preponderance of 
evidence.  The Applicant’s alleged offense was substantiated by the Family Advocacy 
Program Case Review Committee.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by his civilian indictment for child molestation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service.  Relief denied.

Issues 3 and 4.  The Board’s regulations limit its review to a determination on the propriety and equity of the 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.

The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review.  The discharge was proper and equitable.  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.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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 30, effective 
30 Aug 00 until 24 Jan 01, Article 1910-142 (formerly 3630605), 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