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

 ex-QM2, USN
Docket No. ND04-00529

Applicant’s Request

The application for discharge review was received on 20040210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041122.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I feel that my discharge was improperly reviewed due to:

1) Lack of evidence on plantiff’s part
2) Evidence of discovery
3) Witness/investigation was based on perjury
4) Discrepancies in “so called” interviews
5) Never charged with an offense
6) Proof that the alleged misconduct was committed

I am also concerned due to the fact that I was never treated with the respect of a military member.  I was assaulted on a military vessel.  The military never backed me up in that matter.

There was no misconduct.  What evidence with show you beyond a reasonable doubt beyond medical evidence exonerating me and that no misconduct had occurred.

No information of what misconduct was reason for discharge.”

Documentation

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

Letter from Applicant, dated October 26, 2004
Applicant’s DD Form 214 (2)
DD Form 149, dated April 24, 1999
Letter to Board for Correction of Naval Records from Applicant, dated April 24, 1999 (2 pages)
Letter to Board for Correction of Naval Records from Applicant, dated April 24, 1999
Appeal to Board of Veterans’ Appeals VA Form 9, dated September 30, 2002
Letter to the Applicant from Board for Correction of Naval Records, dated June 4, 1999
Letter from NDRB to Applicant, dated October 6, 1999
Travel Certificate, Separation Without Orders, dated May 15, 1997
Letter of Commendation
Letter of Appreciation, dated June 19, 1989
Letter of Appreciation, dated March 22, 1989
Letter from Applicant, undated (2 pages)
Letter from Applicant, undated
Character reference, undated (3 pages)
Note, undated, unsigned
Eastern Virginia Medical School, Children’s Hospital of the King’s Daughters, Child Maltreatment Evaluation, dated October 30, 1996
Medical pages (2)
Virginia Beach City Public Schools, The Office of Programs for Exceptional Children, Psychological Services report, dated June 16, 1994 (4 pages)
Atlantic Psychiatric Services, Psychological Test Report, dated April 30, 1996 (6 pages)
Family Development Institute, Psychological Evaluation, dated March 14, and March 21, 1994 (6 pages)
Court papers, dated September 1, 1993 (2 pages)
Family Development Institute, dated May 25, 1994 (2 pages)
Custody/Visitation Order, dated April 1, 1994
Custody/Visitation Order, dated May 27, 1994
Letter from Southampton County, Department of Social Services, dated December 17, 1992
Motion and order to amend order, dated December 2, 1992
Custody/Visitation Order, dated October 2, 1991
Custody/Visitation Order, dated February 21, 1990
Custody Order, dated November 4, 1988
Custody/Visitation Order, dated November 29, 1989
Preliminary Protective Order, dated January 26, 1994
Cover note for attached affidavit, dated July 15, 1998
Letter from J_ to Grandmom, undated
Cover note about assault on Applicant
Letter from Commonwealth of Virginia, Office of the Commonwealth’s Attorney Office, City of Virginia Beach, dated December 10, 1996
Letter from Commander, Naval Base Norfolk to Applicant, dated June 23, 1997 (2 pages)
Incident/compliant report, dated October 1, 1996 (5 pages)
Warrant of Arrest-Misdemeanor (local) from Newport News General District Court, Criminal, executed October 25, 1996 (2 pages)
Petition for Protective Order, dated October 4, 1996
Order of Protection, dated October 11, 1996 (2 copies)
Subpoena for Witness, dated November 5, 1996
Sensitive Family Advocacy Screening Material, dated October 4, 1996 (2 pages)
Cover Note
Letter from attorney, dated August 3, 1998 (2 pages)
Psychological report, dated August 10, 1998 (3 pages)
Affidavit, dated July 30, 1998 (3 pages)
Letter from MD, dated July 28, 1999 (2 pages)
Cover letter, dated January 30, 2004
Letter of deficiency, dated March 28, 1997
Refund anticipation loan request and supplemental loan agreement, dated February 1, 1993
Handwritten Note
Analysis of long distance calling, dated December 26, 1994 (5 pages)
Seven pages from Applicant’s service record
Applicant’s ex-wife’ computer e-mail pages (172 pages)
Limitation of use of recorded conversations as evidence paper
Letter of permission, undated
Letter requesting medical records
Authorization for release of information, dated December 4, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880708 - 880725	COG
	Active:   USN			880726 - 920723	HON

Period of Service Under Review:

Date of Enlistment:  920724		Date of Discharge:  970521

Length of Service (years, months, days):

	Active:    04  09  28
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rate:  QM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (4)	Behavior:  3.40 (4)		OTA:  3.65
Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.93

Military Decorations:  None

Unit/Campaign/Service Awards:  CGSOR, NUC, SSDR (3), NDSM, NER, GCM (2), SASM (2), KLM, LoC, LoA

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970324:	An Administrative Discharge Board, based upon a preponderance of the evidence and found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.  [Extracted from Letter of Deficiency, dated 970328, provided by the Applicant.]

970521:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630605.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970521 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issues 1 through 4, and 6:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The record contains evidence the Applicant was processed for separation by reason of misconduct due to commission of a serious offense.  Further evidence submitted by the Applicant indicates the serious offense for which he was separated was likely a violation of Article 134, UCMJ, indecent acts or liberties with a child.  The Applicant vigorously contends that there is no evidence to support this charge and that he is innocent.  The Applicant also implies that this charge was concocted by his ex-wife as a means of revenge.  

The burden of proof rests with the Applicant on the presentation of substantial and credible evidence.  In the absence of such evidence, the NDRB must rely upon the presumption of regularity.  The Applicant points to a psychological test report which indicates “serious concerns” about the alleged victim’s psychological status and shows “highly impaired reality testing” which could cause her to have “difficulty adequately distinguishing between reality and fantasy.”  However, the report also concludes that “the testing does not indicate that [the alleged victim] would lack the ability to report accurately and realistically about abuse by her stepfather which she has recently alleged.”  The report continues, “[t]his testing is consistent with the hypothesis that [the alleged victim] has been molested, but, as is always the case with such testing, cannot speak with absolute certainty about whether abuse has actually occurred, nor definitively identify the perpetrator.”

The Applicant also points to a medical exam of the alleged victim.  Like the report noted above, it too is contradictory and inconclusive.  The report concludes that “[t]hese findings are consistent with an abnormal genital examination … are consistent with antecedent transhymenal penetration.”  Yet in his handwritten notes, the doctor notes that “vaginal area – show no evidence of penetration.”  The Applicant has also submitted hundreds of pages of internet chat logs between his ex-wife and other parties.  A review of these logs discovered no evidence of significant worth.  While the logs may show the Applicant’s ex-wife to be a poor parent and vindictive woman, they do not show any impropriety in regard to the ex-wife’s behavior in relation to the allegations of child sexual abuse.  The Applicant’s evidence simply does not rise to the level required to overcome the government’s presumption of regularity.  As such, relief denied.

The Applicant also makes various other contentions, including perjury and discrepancies in interviews.  As noted above, the government enjoys a presumption of regularity in the conduct of its affairs.  The burden of proof to overcome this presumption rests with the Applicant on the presentation of substantial and credible evidence.  In the absence of such evidence, the NDRB must rely upon the presumption of regularity.  The Applicant has provided no evidence to support these contentions and as such, relief must be denied.

Issue 5:  The Applicant contends his discharge was improper because he was never charged with a crime.  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 Applicant was provided the opportunity to present his case to an administrative board.  The administrative board, after a full and fair hearing of all of the evidence, determined by unanimous vote that a preponderance of the evidence supported the commission of a serious offense, that the offense warranted separation and that the character of service should be under other than honorable conditions.  An administrative separation with an under other than honorable conditions discharge is not punitive in nature.  The strict requirements of a court-martial or civilian trial need not be observed and charges need not be proven beyond a reasonable doubt to justify the Applicant’s separation.  The Navy followed the appropriate regulations in the processing of the Applicant’s case.  Relief denied.  

The Applicant makes issue of his ex-wife receiving monthly compensation from the government and is not satisfied with the Navy’s handling of the alleged assault his wife committed upon him.  Regulations limit the NDRB to a review of the Applicant’s discharge based on a standard of propriety or equity.  The NDRB has neither the expertise nor the jurisdiction to address theses contentions by the Applicant.  

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.

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.  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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, indecent acts or liberties with a chills, if adjudged at a Special or General Court Martial.

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

E.  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.

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