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

 ex-ET2, USN
Docket No. ND04-00642

Applicant’s Request

The application for discharge review was received on 20040312.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041028.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and Applicant’s representative (American Legion):

“1.  (Equity Issue)  This former member avers that his reason for discharge, as evidenced by his assigned GKL separation code, is erroneous and warrants the Board’s relief with an amendment to Secretarial Authority.

2. (Equity Issue)  This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_________________________________________________________________

In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553 and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD 2l4
Previously submitted DD Form 293, dated April 17, 2001
NDRB Docket Assignment Letter, dated April 25, 2001
NDRB Delayed Discharge Review Letter, dated July 12, 2001
NDRB Discharge Review Decisional Document
Department of the Navy Letter, dated June 15, 2002/DD Form 215
Sailor of the Quarter Designation Letter, January through March 1984
Air Force Commendation Medal Certificate
Enlisted Surface Warfare Certificate, dated June 20, 1986
Submarine Qualification Certificate, dated June 30, 1991
Navy Recruiting Command Letter of Commendation, dated May 27, 1993
Navy Achievement Medal Certificate (1 Award), dated October10, 1994
LDO Application, dated July 30, 1993
Special Court Martial Amending Order 1 A-95, dated April 17, 1995
Results of Trial Letter, dated June 28, 1995
Message, dated 011500Z May 95
Letter from J_ H_ concerning accuser T_ F_, dated September 21, 1995
Navy Achievement Medal Certificate (2nd Award), dated August 18, 1996
Designation of Enlisted Aviation Warfare Specialist, dated April 11, 1997
Navy Achievement Medal Certificate (3rd Award), dated April 24, 1997
Letter from accuser T_ F_, dated September 22, 1995
Letter from accuser S_ M_, dated September 27, 1995
Denial of new trial letter, dated March 31, 1997
Request for Counsel for Admin Board Proceedings, dated April 17, 1997
Retention Letter from Lt K_ E_ K_, Defense Counsel, dated June 19. 1997
Charge Sheet ICO MS1 A_ J_ G_
Message, dated 031242Z Jan 96
Admin Board Questionnaire from Capt R_ C_
Letter to Admin Board from Capt R_ C_, dated May 20, 1997
Letter to Admin Board from LCDR E_ Z_
Admin Board Questionnaire from RMCS(SW) S_ H_
Admin Board Questionnaire from ABEl W_ C_
ASVAB test results, dated February 24, 2004
(hh) Copy of College Diploma, dated December 16, 1999
(ii) Notary Public Certificate
(jj) Letter of Recommendation
Membership card from American Legion
Applicant’s DD Form 214 (Member 1)
Letter of reference, dated October 27, 2004
United States Postal Service letter, dated February 20, 2004
Applicant’s ASVAB scoring sheet, dated October 10, 2004
Letter of reference, not dated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	810728 - 810916	COG
	Active:   USN			810917 - 840823	HON
		   USN			840824 - 900529	HON

Period of Service Under Review:

Date of Enlistment:  900530			Date of Discharge:  970812

Length of Service (years, months, days):

	Active:    07  02  13
	Inactive:  None

Age at Entry:  25

Years Contracted:  5 (extended to 971109) [Extracted from CO, NAS JAX letter of 970609.]

Education Level:  9 (GED)			AFQT:  48

Highest Rate:  QM1(SS)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (7)		Behavior:  3.80 (7)		OTA:  3.85	4.0 evals
Performance:  3.00 (4)		Behavior:  3.25 (4)		OTA:  3.63	5.0 evals

Military Decorations:  NAM (3)

Unit/Campaign/Service Awards:  AFCM, MUC, NUC, GCM (3), NATO Medal, NDSM, SSR (5), Recruiter Ribbon, SSW Insignia, EAWS Insignia, ESWS Insignia, SSBN Patrol Pin, NER

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

900530:	Reenlisted at the Navy Recruiting District, New York for 5 years.

950421:	Special Court-Martial
	Charge I: violation of the UCMJ, Article 92, (13 specifications): violation of a lawful general regulation.
Specification 1: Wrongfully attempting to form a dating or social relationship with prospect S_ M_ on or about Jun 94.
Specification 2: Wrongfully engaging in physical contact with prospect S_ M_ by hugging her on or about Aug 94.
Specification 3: Wrongfully harassing prospect S_ M_ on or about Aug 94. Specification 4: Wrongfully harassing and using abusive language toward prospect T_ F_ on or about Jul 94.
Specification 5: Wrongfully engaging in physical contact with prospect T_ F_ by taking her hand in his, moving it to his mouth and licking her fingers on or about Aug 94.
Specification 6: Wrongfully attempting to form a dating or social relationship with and by harassing prospect T_ W_ on or about 22 Sep 94. Specification 7: Wrongfully engaging in physical contact with C_ H_, a prospect, Applicant or DEP person on or between 1 Aug and 14 Sep 94. Specification 8: Wrongfully entering the hotel rooms of Applicants C_ H_ and D_ S_ at a MEPS lodging facility, on or about 11 Aug 94. Specification 9: Wrongfully engaging in physical contact with Applicant C_ H_ on or between 1 Aug and 14 Sep 94.
Specification 10: Was derelict in performing his duties in that he willfully failed to ensure Applicant C_ H_’s prior drug usage and hospitalization were reported and recorded during her processing for enlistment, as it was his duty to do, on or between 1 Aug and 14 Sep 94.
Specification 11: By harassing M_ F_, an Applicant or DEP person, on or about Oct 93.
Specification 12: By wrongfully engaging in physical contact with M_ F_ an Applicant or DEP person, by having intercourse with her on or between Oct 93 and 1 Feb 94.
Specification 13: By wrongfully sexually harassing AKAA M_ F_ , USN, by calling her into his office, appearing before her in boxer shorts and asking her to “feel his silk” or words to that effect, on or about Apr 94.
Charge II: violation of the UCMJ, Article 128 (4 Specifications):
Specification 1: Unlawfully hold and restrain S_ M_ M_ by wrapping his arms around her body in August 1974.
Specification 2: Unlawfully touch the hand of T_ M_ F_ by holding her hand to his mouth and licking her fingers.
Specification 3: Unlawfully touch C_ A_ H_ by pinching her breast with his hands on two occasions, grabbing her pubic area with his hand once, and slapping her on the buttocks with his hand on three occasions between 940801 and 940914.
Specification 4: Unlawfully touch C_ A_ H_ by rubbing her pelvic area with his hand, inserting his finger into her vagina and moving said finger in and out, and placing and holding her hand on his penis and moving her hand up and down on 940811.
Charge III: violation of the UCMJ, Article 134 (7 Specifications and an additional Charge of Article 134):
Specification 1: On or about Aug 94 commit an indecent assault upon S_ M_ by holding her body against his without consent.
Specification 2: On or about Aug 94 commit an indecent assault upon T_ F_ by taking her hand in his, moving it to his mouth and licking her fingers.
Specification 3: On or about 22 Sep 94 communicate indecent language to T_ W_.
Specification 4: On or between 1 Aug and 14 Sep 94 commit an indecent assault upon C_ H_ by touching her on the breast, pubic area and buttocks. Specification 5: On or about 11 Aug 94 commit an indecent assault upon C_ H_ by touching her pelvic area and placing her hand on his penis. Specification 6: On or about 19 Aug 94 indecently exposed his genitals in public.
Specification 7: On or about Nov 94 communicated indecent language to L_ F_ and M_ F_.
Additional specification: On or between Oct 93 and Feb 94 commit adultery.
Findings: to Charge I and specifications 2, 4, 5, 8, 12, and 13 thereunder, guilty.
Charge II and specification 1 thereunder not guilty and specifications 2, 3, 4, dismissed.
Charge III and specifications 2 and additional charge of 134 - guilty
Sentence: Confined 15 days, serve 45 days hard labor without confinement, forfeiture of $500 per month for 6 months, reduction to E-5, and letter of reprimand.
CA 950628: Sentence approved and ordered executed.

950423:	Applicant confined to NAS Jacksonville Brig.

950508:	Applicant released from confinement and returned to full duty.

950628:	Punitive Letter of Reprimand issued to Applicant.

960531:	Applicant petitioned for a new trial.

970331:	JAG denied new trial.

970414:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial on 950421 as documented in service record.

970414:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970521:	An Administrative Discharge Board, by a vote of 2 to 1, recommended the Applicant be retained.

970522:	Dissenting Board Member’s (CDR L_ T_, USN) statement.

970609:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial on 950421. Commanding Officer’s comments (verbatim): “a. I do not concur with the Board’s recommendation for retention of ET2 C_ (Applicant). I believe the seriousness of the misconduct clearly supports additional review of this case for separation.
b. Petty Officer C_ (Applicant) was in a position of trust. He was in the forefront, dealing with the public on behalf of the Navy. He violated general regulations by sexually harassing, sexually assaulting, and committing adultery with prospective recruits. His misconduct victimized prospective female recruits and the reputation of the naval service. His actions cannot be condoned. I strongly believe that not separating ET2 C_ (Applicant) sends the wrong signal regarding the Navy’s policy on sexual harassment.
c. I request this case be forwarded for further review by the Secretary of the Navy.  Because of ET2 C_ (Applicant)’s otherwise outstanding service record, I recommend his separation be characterized as general (under honorable conditions).”

970623:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense - [indecent assault].

970702:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense - [indecent assault].

970728:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge.

020221:	NDRB documentary record review Docket Number ND01-00675 conducted.  Determination:  discharge proper and equitable; relief not warranted.

Separation authority not available to the Board

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970812 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 proper and equitable (C and D).

Issue 1:  The Applicant’s representative stated that the reason for the Applicant’s discharge, as evidenced by his assigned GKL separation code, is erroneous and warrants the Board’s relief with an amendment to Secretarial Authority.  The record shows the Applicant was found guilty at a Special Court-Martial of violations of the UCMJ, Article 92, violation of a lawful order (6 specifications), Article 134, indecent assault, and Article 134, Adultery.  All of these offenses are considered serious military offenses.  The assignment of the separation code GKL (Sexual Perversion) accurately describes the reason the Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense – [indecent assault].  Relief is not warranted.

Issue 2:  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  The Board commends the Applicant on his educational achievements, however, the Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, no relief will be granted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 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