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

 ex-BUCN, USN
Docket No. ND04-00288

Applicant’s Request

The application for discharge review was received on 20031201.  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 20040817.  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 and reason for discharge shall change to HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-704.  The SPN code shall change to JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:
I am writing this letter in reference to the recent correspondence I received from the Department of the Navy that addresses the situation I have been dealing with.  I was discharged from the Navy, March 7, 2003 with a general discharge under honorable conditions.  The reason for the discharge, I felt was not carried out the navy’s fullest potential.  In the letter that the Navy addressed to The Honorable E_ S_, who is a congressman in the state of Virginia, the Navy stated that they were concerned about delaying the careers of the alleged victims.  They stated that they felt the harassment charges were to serious to dismiss based on the allegations but they didn’t feel like it was serious enough to take to court martial, and I don’t feel that it was fair and just.  I feel I was entitled to the right of having a court martial under the rights and regulations of the Navy.  I did in fact hire a civilian lawyer because I felt he could offer the case the knowledge he had without being part of the Navy.  I also felt that hiring someone that was within the Navy would not be able to represent me to the full qualifications.  I did see in the letter they wrote that they were able to evaluate my military record, and that they considered carefully the seriousness of the offense and the likelihood of reoccurrence and my potential for further service within the navy.  I feel that based on my military record, which is outstanding, my potential for further service shouldn’t have even been a negative factor.  After reading and re-reading the letter several times I have noticed some things that I am concerned about based on what the liaison has said.  It did state that the subject charges, although serious, did not warrant a referral for court martial.  I don’t understand that because I felt that these charges were serious for the simple fact that I was not guilty, but yet they felt that they were too serious to dismiss them.  I felt that was a hypocritical statement.  How can you say it isn’t serious enough for a court martial but too serious too dismiss?  They also stated that they were more concerned about the victims careers but yet I felt that my career was also in jeopardy at that time and that my career should’ve been taken into consideration also and it wasn’t because they felt that I was guilty of a crime that I didn’t commit.  The statement that was made in this letter regarding the Navy’s decision, was based on the consideration of the careers of myself and the victims, you were able to see it was one sided and the Navy was only looking at the victims and their whereabouts and their future careers in the Navy.  They also stated that there was cross-examination done on my lawyers’ part between him and the victims.  If you read over the documentation provided to you in this packet from the administrative board hearing that was typed up and distributed to me that this in fact was not done.  There were tapes of the hearing that were recorded but I was unable to obtain those.  The members from the hearing told me they were unable to release the tapes and they would be transcribing the information, which I have provided to you.  There are bits and pieces that were left out of the documentation from the Administrative Board Hearing.  I was wishing to obtain those cassettes so that I was able to thoroughly listen to them and hear exactly what was said, but who is to say those tapes have not been altered by now.  It seems that if you read over the transcription from the hearing that day that the only person who’s statement was able to be provided without a notation underneath it that “there were some things unintelligible” to write in there were the victims.  Therefore, I feel there were things left out of it that should have been provided that would’ve clearly shown that I am not guilty, but unfortunately those statements were not provided because it seems that the notes were altered to meet the necessary needs of the Navy.  The victim did state that she did not have a private conversation with me but yet if you continue to read her statement you will see where she states “I asked her to come to my room so we could study together”, but she says we didn’t have a private conversation?  This situation has affected my life and my emotional stability tremendously.  It has also put a great strain on my marriage emotionally and mentally.  As with anyone in the Navy, we depended on it as a source of income, because it was my career.  Because of the way this whole ordeal has come together I have been unable to provide that financial stability for my family and have in fact had to obtain 2 part time jobs to make ends meet.  With both jobs this doesn’t even begin to put a dent in the debt that this situation has caused my family and myself I feel the outcome of the Navy’s decision would have been different if they would’ve allowed this to court martial and did a thorough investigation and found that I was in fact not guilty.  I do have physical evidence of particular chiefs speaking with me in a very inappropriate manner.  I felt that the entire time this situation was going on chiefs.  Personnel master chiefs and warrant officers were harassing me.  I felt they considered me as a guilty individual when they have never looked into the details of the situation and saw that I was not guilty.  It was easy enough to assume I was guilty because I was an easy target.  In my eves I feel the Navy wanted this problem to just “disappear” and not actually take the time to investigate the problem and find that I was in fact NOT GUILTY and that these girls were accusing me of a crime I didn’t commit.  I was offered NJP but electively refused it.  I do feel that because I did refuse it, this is a reason why this ordeal was taken to an administrative board, but it was also irritating the chiefs and master chiefs because they wanted me out.  I did in fact go through the entire Seabees course and finished as one of the top of my class, but not allowed to walk across the stage and collect my certificate as the others did.  This is one form of hazing I received while at NCTC.  I do feel as though I served my country well while I was in the Navy.  I served on the USS Enterprise for two years and I did serve in Operation Southern Watch, and Operation Enduring Freedom.  It was also my dream to make the Navy a career and lifelong experience.  I did receive orders to be stationed in California.  The report in date was to be no later than January 15, 2003.  Due to the Navy’s decision to take this problem to the board I was held up and was unable to keep those orders.  During this time two of my credible witness were sent to California on their orders and were unable to attend the hearing and represent my credibility.  Therefore I feel that the evidence I have provided to you included in this packet you will be able to read over and see that I was in fact a strong and proud Seabee.  This whole ordeal has not only created a hardship for myself but has created a hardship on my wife and two kids.  I wish for you to read over each character reference statement so that you are able to get a feel for what type of man I really am.
Once again please read over the enclosed information that I have provided to you with an open mind and heart, and know that I am and was a proud sailor.  I am requesting that my RE code change so that I can be reinstated with full pay and full rank.
Thank you for prompt attention to this matter.  I look forward to hearing from someone very soon.”
A_ L._ S_, SR

Documentation

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

Copy of DD Form 214 (Member 4)
Copy of DD Form 214 (Member 1)
Letter to Congressman E_, S_, dated March 27, 2003 (3 pages)
Letter of Receipt from E_, S_, dated May 22, 2003
Letter from E_ A_ C_, Special Assistant Congressional Liaison Office by direction, dated May 16, 2003
Character witness questionnaires from J_ M_, L_ W_ J_, E_ S_ B_, and L_ J_ A_.   (15 pages)
Evaluation report, dated from February 18, 2002 through July 15, 2002
Captain’s Mast, dated November 26, 2002
Appointment of an Administrative board for BUCN A_ L_ S_, (Applicant), dated January 07, 2003
Amended appointment of an administrative board for BUCN A_ L_S_, (Applicant), dated January 13, 2003
Record of proceedings of an administrative board ICO BUCN A_ L_ S_, (Applicant), dated January 25, 2003 (10 pages)
Board finding /recommendations sheet, dated August 22, 2002 (2 pages)
Letter of deficiency ICO BUCN A_ L_ S_, from Chase Chase & Associated, PLLC attorneys at Law, dated February 10, 2003 (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000824 - 000906	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000907		Date of Discharge:  030307

Length of Service (years, months, days):

	Active:    02  06  01
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.00(1)*		Behavior:  4.00(1)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR

Days of Unauthorized Absence:  None

*Marks extracted from supporting documents provided by the Applicant.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

021101:	Charged with violation of UCMJ, Article 92 (4 Specs):  Failure to obey an order or regulation.  
Specification 1:  On or about 020928 through 021029, fail to obey a lawful general order, to wit: Navy equal opportunity policy, OPNAVINST 5354.1E dated 010122 by wrongfully making unwanted sexually offensive comments to CR C_.
Specification 2:  On or about 021004 through 021018, fail to obey a lawful general order, to wit: Navy equal opportunity policy, OPNAVINST 5354.IE dated 010122 by wrongfully making unwanted sexually offensive comments to CR W_.
Specification 3:  On or about 021016 through 021029, fail to obey a lawful general order, to wit: navy equal opportunity policy, OPNAVINST 5354.1E dated 010122 by wrongfully making unwanted sexually offensive comments to CR H_.  
Specification 4:  On or about 020925 through 020929, fail to obey a lawful general order, to wit: Navy equal opportunity policy, OPNAVIST 5354.1E dated 010122 by wrongfully making unwanted sexually offensive comments to CR K_.
Violation UCMJ, Article 134 (1 Spec):  Indecent Assault.  
Specification 1:  On or about 021028, commit an indecent assault upon CR C_ a person not his wife by grabbing her crotch area, with intent to gratify his sexual desires.
Applicant refuses NJP and requests trial by court martial.
	
021218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021219:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030115:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense for violation of UCMJ, Article 92 (4 Specs), but by a vote of 0-3 does not support misconduct for violation of UCMJ Article 134.  Board voted 3-0 that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

030318:	Commanding Officer concurring with the administration board, advised CNPC of Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: BUCN S_ (Applicant) reported to this command on 020924 in a temporary duty under instruction status for BU “A” school.  BUCN S_ (Applicant) was placed on report after a female sailor alleged that he sexually harassed and assaulted her.  Investigation of the incident identified several other female sailors who also alleged that BUCN S_ (Applicant) had sexually harassed them.  Prior to the administration of non-judicial punishment BUCN S_ (Applicant) was advised of his rights, including his right to refuse non-judicial punishment proceedings.  Although the charges against BUCN S_ (Applicant) were serious, I did not feel a court-martial was warranted; however, the charges were too serious to dismiss.  Based on the allegations, BUCN S_ (Applicant) military record, the seriousness of the alleged offense, the likelihood of reoccurrence, and the member’s potential for further service, I initiated processing for Administrative Separation under the guidelines set forth in the Navy Military Personnel Manual.  BUCN S_ (Applicant) was advised of and elected all rights afforded him.  An Administrative Board was convened and BUCN S_ (Applicant) appeared before the board with both military and civilian counsel.  The board unanimously found, by a preponderance of the evidence, that BUCN S_ (Applicant) had committed the offenses of sexual harassment as alleged but did not find sufficient evidence to support the charge of indecent assault.  The board recommended that BUCN S_ (Applicant) be separated from the U.S. Navy with a General (Under Honorable Conditions) characterization.  Pursuant to the board’s recommendation, BUCN S_ (Applicant) was separated from the Navy on 030307.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030307 with a general (under 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 inequitable (C and D).

Issue 1.    Separation by reason of commission of a serious offense does not require adjudication by nonjudicial punishment, judicial proceedings or civilian conviction. However, the offense must be substantiated by a preponderance of evidence.  The preponderance of the evidence of record does not demonstrate that the Applicant committed the misconduct that he was found to have committed by the Administrative Discharge Board.  As a result, the Board found that the Applicant’s characterization of discharge shall change to Honorable and the corresponding narrative reason for separation shall change to Secretarial Authority.    

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities or mitigating financial difficulties.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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