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

 
ex-CTR3, USN
Docket No. ND04-00874

Applicant’s Request

The application for discharge review was received on 20040503.  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 listed the American Legion as the representative on the DD Form 293.

Decision

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

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Below are special items of consideration and explanation of my request for any board or reviewing authority:

Item 6.  My name is R_ J_ I_ (Applicant) SSN (social security number deleted).  I served as a Cryptologic Technician (Collection) in the United States Navy from 18 August 1992 through September 25, 2000.  I received two Honorable Discharges and one General (Under Honorable Conditions) Discharge.

I served with honor and distinction at every command or afloat unit I was stationed upon I had above average evaluations, became Surface Warfare qualified afloat, worked with Special Operations Forces, and was on the road to becoming a young Commissioned Officer.

I made E6 First time up, and was recommended as the top Sailor at my last command (NSGA Kunia).  I was recommended by my Commanding Officer as his #1 choice to earn a commission through the Seaman to Admiral Program on 15 July 1999.

In May of 1999, I began to go through a rough divorce with my Ex-wife.  She would not sign over my request as a Plaintiff for a divorce.  I later entered into a friendship/intimate period with L_ A_ F_ whom was stationed at my command going through similar circumstances.

These behaviors by the both of us were wrong due to the fact we were both still married.  We both wanted to move on with our lives, but made a bad decision because being seen in public causing a bad perception of us by people at our command.

On 19 November 1999, was brought to Captain’s Mast for Adultery.  I had my E6 promotion removed, was put back to being an E5 and had restriction and a pay cut suspended.  Time went on, and my wrong actions with L_ continued.  In the near future beyond this mast several things would happen, for which I will list below in a timeline and will attach for you as hardcopy proof of validity.

-5/1/2000, I called the Honolulu Police Department (HPD) to complain to the police that L_ because she was assaulting me, and I wanted her to leave.  She agreed to hpd that she was hitting me, never made an accusation I hit or laid my hands on her, and wanted to leave.  The officer states there were no injuries and this was inaccurate.

-5/3/2000, I went to HPD to complain of some erroneous data and information in the report filed on the 1st and wanted a follow-up or modification of the report to state everything that was true and correct.  The officer noted scratches on my face and no other injuries.  The Officer filed an Assault case and a Criminal Property Damage case against L_ for the assault on me, and the damage to my property.  The only person ever assaulted was me through any of these incidences.  I know it is hard to believe a male was assaulted, but it is the undisputed truth.

-5/18/2000, I filed a Temporary Restraining Order (TRO) against L_ A_ F_ so she could remove herself from my life and leave me alone.  I appeared in court for the TRO on 3 May 2000 to have the TRO enforced.  Once L_ caught on to the fact she had a TRO filed on her for the assault and property damages, she went to the command with accusations I hit her and abused her physically.  This was completely false.  Never once was there any evidence by the Police, the command, Shore Patrol, Victim’s Advocate, herself or anyone else of this accusation.  It was completely hearsay by Ms. F_.  The command immediately brought me up on charges of Adultery (for the second time) and Assault (2 Counts).  I retained JAG council immediately and prepared for a self-requested Court Martial because I was not guilty of the alleged assault charges being brought against me.  I went through an embarrassing arraignment and trial preparation for about 10-12 weeks.  My JAG attorneys (LT.  K_ A_ and LT.  M_ F_) advised me that the command did not have enough evidence to convict me of an assault at my requested Court Martial, and wanted to plea the case back to a Captain’s Mast forum.  The agreement was for me to plead guilty to adultery and the assault accusations would be dropped prior to entering the Captain’s Mast forum.  I had a 911 recording as evidence with L_ assaulting me, and Kunia knew it.  I agreed and my JAG Attorney’s thought it would be beneficial to get the case wrapped up fair and quickly.

-8/1/2000, I attended my Captain’s Mast with no JAG attorney.  I was told no JAG attorney could be present at a Captain’s Mast Forum.  I was found guilty of Adultery for a second time, and sentenced to another reduction in pay grade to E4, a suspension in pay, and 45 days of hard restriction.  I was also given the option to stay in the service as an E4, or become a civilian.  I chose to leave the Navy.

-12/16/200, (Cheyenne, Wyoming) I called the Police on L_ to remove herself from my residence and she would not leave.  I asked for an Officer Escort to keep the peace.  She made an accusation at the Police I laid my hands on her.  The Police believed her to be the aggressor because she admitted to assaulting me and damaging property in my home.

-11/2004, I began to apply for Federal and Law Enforcement positions requiring background checks.  I was having problems getting in despite a Top Secret SCI Clearance I received in the Navy.  I was always upfront with them about my discharge, my adultery convictions and anything they wanted to know about it.  Some of these offices actually pull my official record on top of gaining an official copy of my DD214.  After review, and pulling a lot of strings, I noticed the code “HKQ” in Block 26 of my DD214 stating commission of a serious offense and listing a MILPERSMAN as reference.  The code “HKQ” on the internet says “No information on file” everywhere I look on the web.  The MILPERSMAN is not very clear on why I was assigned the code “HKQ” If I was given “Commission of a Serious Offense” due to my adultery convictions, so be it.  However, I asked the Honorable Senator M_ E_ to inquire on my official records to see what was documented in my official records about all of the trouble I had went through and that it was all accurately documented.  Much to my dismay, it was not.

My worse thought was true.  The Commanding Officer had actually sent a letter almost 6 months after my release from military service (Active) stating he convicted me of “Failure to Obey a Lawful Order’ on 10 November 1999, which was Adultery as stated above.  This information was modified by the Command and is inaccurate.  He also states that on 1 August 2000, he found me guilty of two assault charges and an adultery charges.  This is partially false.  I was only convicted of Adultery for the second time and not convicted of assault charges.  It would seem that a “Double Jeopardy conviction” occurred for the Adultery charge.  I don’t believe this to be proper or fair, but please correct me if I am wrong.

The letter “Ser NOOLJO214-01” from NSGA Kunia is hardly timely, false and mostly inaccurate.  The Command obviously tried to cover its bases by listing my first conviction of Adultery as “Failure to Obey a Lawful Order’.  What order was this? What order did I allegedly disobey?

I have contacted the JAG at Kunia and they have no evidence or documentation of these occurrences except when they occurred.  I have contacted my JAG Attorney (LT.  K_ A_) whom is now station in Naples.  He emailed me back that he has no records of what went on, but has first-hand knowledge and has sent some E-mail correspondence and I am sure would cooperate with you if necessary.

Item 8.  I am first requesting this review after three years due to the error being unbeknownst to me and unnoticed to me on my DD214 for so long.  Additionally, and alleged “assault” conviction(s) or “failure to obey any order’ was not known to be in my official records nor was I ever convicted of either.  There are consistent patterns of false “assault” attention-getting accusation made at me by Ms.  F_.  I made some bad, immoral judgments by having friendship/intimate affairs with Ms.  F_.  I paid and still pay many prices for my actions.  I never laid a hand on Ms.  F_ nor ever acted out against her in a verbal or physical way.

Secondly, I would like my adultery charges dropped to injustice for being convicted of the same thing “Adultery” twice, then the command trying to cover it up calling it a “Failure to Obey a Lawful General Order’.

Lastly I am requesting an upgrade to “Honorable” on my discharge because of these injustices.  I chose the right choices during my requested Court Martial that I was perfectly prepared to go through with, but the command pleaded it back to Mast for only an Adultery conviction.

I respectfully urge you to review my case and consider my requests for permanent record modification, possible “Double-Jeopardy” conviction and discharge upgrade.  I feel that you will see that things do not add up here at all.  Documents are not accurate, timely, convictions are not accurate, and neither are the punishments for my two Adultery convictions.  No where does it list I was demoted from E6.  The skipper that signed “Ser N00U0214-01” thought I was Officer Material on my endorsement letter dated 1 May 1999.  Not all of my moral choices were the greatest and I realize that.  I just want what is right and what is fair.  I want to set my permanent military record and what it is accurate and truthful.

I urge you to consider my conduct as a Sailor who followed his core values through his whole career and since.  I still live by those values today.  I have enclosed documents such as an Officer Package, evaluations, medal certificates, recommendation letters from Senior Officers in all services.  I have been an extremely good citizen since discharge as well.  My conduct at the end of my career, however personal and confidential, was wrong and exploited by the command.  My judgment was impaired by immaturity and blinded by the companionship of a female.  I was human, and made some bad calls.  I was further impaired by my Ex-wife not giving me the divorce I requested for months.  My divorce with my Ex-wife was not final until August 13, 2001.  I had to have her served in another state by an undercover Detective to get her to comply with the law and give me my divorce.  I just wanted to move on with my personal life and be happy as we all do.  I made an immoral mistake twice by committing Adultery.  I had two Honorable Discharges and would probably be a Chief or Junior Officer if I had had made these two Adulterer errors in judgment.  Please look at my Service Record, the injustices levied on me, and consider my past as a “Recruiting Poster Sailor’ evidence of the caliber of person I was and still am.  I have earned three college degrees and have continued on the same values and paths I learned and was on during my tenure in the service.  Please assist me in correcting my military service records, upgrading my discharge to honorable and removing the “HKQ” discharge code from my DD-214.

If you disagree with my requests, please explain in detail why you do.  I believe all of my requests should be honored, especially the removal of an assault conviction from my record.  It hurts to know I was convicted on my Honor for Adultery twice, but the command seems to have attempted to cover up their mistakes at my expense.  This is insulting to me showing no honor on their parts.  My command seems to have abused its authority, and gave me the raw end of the stick not sticking to all agreements and promises made.  If the board does not agree with upgrading my discharge, I could definitely understand.  My point are that my records are wrong, promises were made by the service that were not made, two commands handled my out processing paperwork causing errors, and an injustice has occurred to me.  I want to succeed in life, move forward.  I am reminded each day I wake up for the mistakes and bad judgments I have made in the past that were wrong.  I committed adultery.  I NEVER committed any assault(s) on anyone in my life.  Please consider all of my requests accordingly.  This is/was not right and submitting my requests to your forum was how I was advised to handle this.  I have Senator M_ E_ and the American Legion as representatives to help me through these processes.

Thank you for your time and I appreciate you fair considerations with my requests.

Attached are all TRO documentation, Police Reports, E-mails from my JAG Attorney and worthy evidence I retain to include “Ser N00L/214-01”.  I have also enclosed copies of significant achievements, milestones, and two Honorable Discharge Certificates I received while in the United States Navy.  I have attempted to gain as much evidence that I can from the Commands, Navy JAG and my own records.  Please review my case and requests thoroughly and fairly.  Please contact me at (telephone number deleted) with your findings.

Very Respectfully,

R_ J_ I_ (Applicant) (social security number deleted)”

The American Legion did not provide any issues.

Documentation

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

Applicant’s DD Form 214 (2)
Letter from Navy Personnel Command to a United States Senator, dated December 19, 2003 (2 pages)
Honolulu Police Department incident report, dated May 1, 2000
Police Department, City and County of Honolulu letter, dated January 13, 2004 (8 pages)
E-mail, dated December 1, 2003 (2 pages)
E-mail, dated January 5, 2004 (2 pages)
E-mail, dated December 1, 2003 (3 pages)
Forty-seven pages from Applicant’s service record
Central High School Transcript, dated May 13, 1999 (2 pages)
Course completed list (2 pages)
Picture of Applicant
Letter to Applicant, dated January 5, 1999
Letter to Applicant, dated May 29, 1997

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	911127 - 920817	COG
	Active:   USN 			920818 - 950726	HON
		   USN			950727 - 980917	HON

Period of Service Under Review:

Date of Enlistment:  980918		Date of Discharge:  000925

Length of Service (years, months, days):

	Active:    02  00  08
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  12			AFQT:  55

Highest Rate:  CTR1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)		Behavior:  2.20 (5)		OTA:  3.02

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM (2), AFEM, SSDR (2), NDSM, GCM (2), JMUA, MUC, NUC, ESWSI, AFOUA, MOVSM, ERM, EPSM, CGSOA

Days of Unauthorized Absence:  None

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:

991119:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order or regulation between August and November 1999.
Forfeiture of $744 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  Forfeiture, restriction, extra duty and reduction suspended for 6 months.  No indication of appeal in the record.

000801:	NJP for violation of UCMJ, Article 128: Unlawfully strike CTSN on 000501, violation of UCMJ, Article 134: Wrongfully have sexual intercourse with CTSN, a married woman not his wife, between April and May 2000.
	Award:  Forfeiture of $778 per month for 2 months, restriction and extra duty for 45 days, oral reprimand, reduction to E-4.  No indication of appeal in the record.

000804:	Applicant notified of intended recommendation for discharge with the least favorable characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

000804:	Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

010316:	Commanding Officer directed discharge general (under 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 20000925 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 proper and equitable (C and D).

Issue 1:  The Applicant's violation of Articles 92, 128 and 134 of the UCMJ constituted serious offenses as defined by regulations.  The Applicant's DD Form 214, Block 26, Separation Code, indicates he was separated for misconduct based on the commission of a serious offense.  No other Separation Code, or Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Separation Code, would be inappropriate.  Relief denied.

The Applicant stated that he would like the charges of adultery dropped from his record.  
The Board has no authority to administratively alter the charges for which the Applicant received nonjudicial punishment.  The Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  Relief denied.

A characterization of service of general (under honorable conditions) 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 award of two nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 92 (Failure to obey a lawful order), 128 (Assault), and 134 (Adultery).    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 characterization of service. An upgrade to honorable is inappropriate.  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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION 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