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

  
ex-DPSN, USN
Docket No. ND04-00718

Applicant’s Request

The application for discharge review was received on 20040408.  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.  Subsequent to the application, the Applicant obtained representation by American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050201.  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:

1.  “The discharge is improper because the Applicants military conduct was never improper.”

2.  “The discharge is improper because the Applicant was not informed of the discharge/or separation hearing and was unable to prepare an adequate defense or notify individuals who would have spoken on Applicants character/demeanor in Applicants defense.”

American Legion did not provide any issues.

Documentation

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

Certificate of Completion (Member/Provider Service Initial Training Program) dated January 26, 2001
Certificate of Completion (LVA’s Tutor Training Program) dated December 22-23, 1997
Employee of the Year Certificate dated December 22, 2003
Character Reference Letter
Letter from Applicant
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890524 - 890525	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890526		Date of Discharge:  970624

Length of Service (years, months, days):

	Active:    04  08  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12	(GED)		AFQT:  72

Highest Rate:  DPSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (5)		Behavior:  3.72 (5)		OTA:  3.72

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1226

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:

920421:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Award:  Restriction and extra duty for 21 days, reduction to E-2 (suspended).  No indication of appeal in the record.

920717:	Punishment of reduction in rate to DPSA suspended at CO’s NJP of 920421 vacated due to continued misconduct.

920721:	NJP for violation of UCMJ, Article 92:  Failed to obey lawful order.
Award:  Forfeiture of ½ pay per month for 2 months (suspended for 6 months), extra duty for 21 days.  No indication of appeal in the record.

920722:	Retention Warning:  Advised of deficiency (Applicant received CO’s NJP on 920421 for violation of UCMJ, Article 86, and on 920721 for violation of UCMJ, Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930420:	Retention Warning:  Advised of deficiency (Involvement with military authorities as evidenced by two previous NJP documented in your service record), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940213:	Apprehended by Civil Authorities on charges: Abduction/Kidnapping; Forcible oral sodomy.

940214:	UA from FCDSSA DAM NECK VA 0700 hours.

950727:	Civil Court:  Tried by the Commonwealth of Virginia on the charge of Forcible Sodomy and Abduction/Kidnapping.
Findings: Guilty of Forcible Sodomy and acquitted for the Abduction/Kidnapping.
Sentence: 7 years confinement in the Virginia State Correctional System.
 
950807:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction as evidenced by all punishments under the UCMJ and civil convictions in your current enlistment.

950808:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

970205:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense and misconduct due to civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970410:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

970609:	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 in absentia on 19970624 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 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:  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 Applicant erroneously contends his discharge is improper because his misconduct was not military related.  Under applicable regulations, administrative discharge processing is not dependent upon a direct nexus of misconduct to military service.  To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  In the Applicant’s case, the Board found overwhelming evidence that the Applicant committed a forcible sodomy by virtue of his civilian conviction.  Additionally, if prosecuted under the UCMJ at special or general court-martial, such misconduct would have made the Applicant eligible to receive a punitive discharge.  Whether or not this misconduct can be construed as “military conduct” is irrelevant.  The evidence of record showed to the Board’s satisfaction that the Applicant’s misconduct properly constituted a serious offense.  Relief denied.

An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two nonjudicial punishment proceedings for a violation of UCMJ Articles 86 and 92.  The Applicant was discharged in absentia, in an unauthorized absence status, because he was incarcerated as a result of his conviction on forcible oral sodomy charges in the state of Virginia.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.   Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2:  The Applicant contends his discharge was improper because he was not informed of the discharge proceedings and was unable to adequately prepare his defense.  A review of the record reveals that on 950807, the Applicant was notified of his processing for administrative separation by reason of misconduct due to commission of a serious offense and civilian conviction.  The record also reveals that the Applicant elected the right to present his case before an administrative discharge board and to be represented by government counsel.  The administrative discharge board was held on 970205, approximately 18 months after the Applicant’s notification.  Although the Applicant was incarcerated, 18 months was an adequate amount of time for the Applicant to meet and confer with his defense counsel in person or through normal prison channels regarding his case, and to mount an effective defense to the charges of misconduct.  As such, the Applicant’s issue is without merit.  Relief denied.  

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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023