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

 ex-MSSR, USN
Docket No. ND04-00882

Applicant’s Request

The application for discharge review was received on 20040506.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested 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.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20050107.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

My name is J_ M_ S_ (Applicant) SSN: (social security number deleted) and I am humbly and respectfully submitting this application for the review of discharge to Naval Council of Personnel Board in requesting an upgrade of my discharge from Other than Honorable to Honorable.

The reason for this special request is I truly feel that my discharge of Other than Honorable was inequitable because of based on one isolated incident in the entire 60 months of service with no other adverse action.

During my tenure in the United States Navy, I had received 4.0 Performance Evaluations from the time when I reported to the Pre-Commissioned Unit Kentucky (SSBN 737) on November 25, 1989 until my last performance evaluation report at Naval Training Center on March 31, 1994.  Some of the highlights from my performance evaluations were:
•Petty Officer S_ (Applicant) is responsible for the cleanliness and sanitary conditions of mess decks, maintaining good order and discipline and the safe operation of mess deck equipment and sculleries.  Supervises 150 recruit Food Service Attendants.
•A top performer with unlimited potential, Extremely knowledgeable, dedicated, and resourceful.  Consistently exhibits extraordinary leadership and managerial abilities.  Always willing to go the extra mile to ensure tasks are accomplished to impeccable standards.
•Instrumental in NTC Orlando’s second place finish in the large ashore category in the Fiscal Year 1993 Captain Edward F. Ney Award competition.  This is the first time that a milestone of this magnitude has been attained.
•Meticulously maintained strict control over sanitary practices, which resulted in an impressive 95%, sanitary compliance score on scheduled and unscheduled medical inspections.
•Petty Officer S_ (Applicant) serves as a role model for others to emulate.  Continually promotes an environment free of discrimination and sexual harassment.  Strongly recommended for advancement to Petty Officer First Class.
CDR A_ W_ D_, 
Department Head 
Naval Training Center, Orlando, FL
March24, 1993—March 31, 1994

•Petty Officer S_ (Applicant's) performance has been outstanding.  His resourcefulness and ability has greatly contributed to the many successes of the food service operations.
•Provided critical leadership and talent during a Supply Management Inspection, resulting in grades of outstanding and excellent across the board.
•Received a Letter of Appreciation from the Commander Submarine Group Ten for his superior performance while temporarily serving in the Group TEN Flag Mess.
•Received a Commanding Officer.  USS Kentucky (SSBN 737) (GOLD)) Letter of Commendation for his outstanding performance on board and a crucial contribution to the ship’s mission.
•Contributes to the positive image of the United States Navy as Choir Director and Licensed Minister at the First African Missionary Baptist Church in Kingsland, GA.
•Petty Officer S_ (Applicant) is outstanding in every respect, significantly improving the quality of the Food Service operation.  He is strongly recommended for advancement to Petty Officer Second Class.
-LCDR M_ W_ K_, Executive Officer 
USS KENTUCKY (SSBN 737) (GOLD)

When I entered into the military on June 28, 1989, I’ve entered as the rank of E-1 (Mess Management Seaman Recruit) and on December 23, 1992, was permitted to assume the title and wear the uniform of Mess Management Second Class Petty Officer by Captain W_ W_ S_ of the USS KENTUCKY (SSBN 737) (GOLD).

On July 10, 1991, one day prior to the commissioning ceremonies of the USS KENTUCKY (SSBN 737), I re-enlisted another four years in the United States Navy, which changed my departure date to July 29, 1996.  And also received my Submarine Designation Pin.

Throughout my military career, I had received letters of commendations from the following military officials for outstanding service and having a positive attitude:
•Rear Admiral F_ L_ T_, Commander
Naval Training Center, Orlando, FL March, 1994
•Captain J_ G_ H_.  Commanding Officer 
USS KENTUCKY (SSBN 737) (GOLD) January 1992
•Captain M_ G_ R_.  Commanding Officer
Pre-Commissioning Unit KENTUCKY (SSBN 737) November 1990
•Commander R_ L_ B_.  Commanding Officer
 USS SAN JUAN (SSN 751) June 1990
•Lieutenant Commander J_ A_ P_.  Battalion Commander 
Service School Command, San Diego, CA November 1989

Enclosed you will find copies of these performance evaluations and letters of commendations as aforementioned.

The incident which caused me to received the Other than Honorable Discharge was based on a an incident in which during the summer of 1994, I had sexual intercourse with a civilian female and had to go to the Navy Training Center Medical for treatment of an Sexual Transmitted Disease.  The Medical official informed me that a HIV test will be conducted, at that time, I personally revealed my health status of being HIV+ (which I was diagnosed while in the Navy in December of 1992) The medical official asked me if the young lady was aware of my health status and I confirmed that she had no knowledge.  Upon the medical official’s receipt of this information, he forwarded this data to the Naval Training Center JAG’s office and formal charges were brought against me.

Based on my understanding of the medical and legal profession that personnel from these departments wasn’t to reveal any confidential information in which they’ve received from a patient without the patient’s consent and I feel that the Medical representative at the Naval Training Center- Orlando, FL violated my rights to privacy and confidentiality.

I fully cooperated with the investigators and pleaded guilty to the charges.  I strongly recommended to the civilian female to submit a sworn statement of the facts based on her knowledge of the incident.  During the Court Martial, the Presiding Judge accepted my plea of guilty to the charges and renders the sentence of eleven months and twenty days of confinement at the Naval Consolidated Brig in Charleston, SC.; demotion in rank from Petty Officer Second Class to Seaman Recruit; and forfeiture of $500 for eleven months.  Based on the character testimonies from previous supervisors, friends, and letters from commanding officer and member of the clergy, the Presiding Judge didn’t issue a discharge.  The Admistrative Board at the Naval Consolidated Brig handled the Other than Honorable Discharge down, based on misconduct.  During the Administrative Board.  evidence that was not submitted during the Court Marital was submitted and influences their decision.

I have been teaching and speaking at churches and schools in various states about preventing this disease from continuing to spread to other citizens of this country and globe as a whole.  Living with this disease for the past twelve and half years has taught me how to be more responsible as an adult and as an citizen of these United States of America.

Since my departure from the United States Navy in 1995, I have been fortunate to work as a Sales Manager in the Hospitality Industry.  Twelve and half years has passed since my diagnosed and I have been very fortunate of not having been hospitalized for any HIV related sickness and have been and continue to be classified as asymptmatic for the HIV disease.  I continue to follow the medical treatments, which are prescribed by the Infectious Disease Department at the Methodist Hospital in Indianapolis, Indiana.  During the fall of 2003, I’ve enrolled into Marian College in Indianapolis.  Indiana to pursue a Bachelors of Arts Degree in Business Administration with a major in Marketing and will be graduating in May of 2006.

I would like to let you know that I am extremely remorseful for my actions that could have passed this deadly disease to an innocent young lady.  My father, the late M_ J_ S_ (Applicant), who served in the United States Navy during World War II taught me to be responsible and provided me with strong values.  This incident was outside of my character and went outside of my religious teachings.  I’ve tried to live the life of an upright and outstanding Christian male who preached the good news of Jesus Christ and on that summer day in 1994, I’ve allowed the enemy forces to have total control of my thinking and conduct.  I should have informed the lady of my health status.  There isn’t a day that goes by, in which I think about my irresponsible action and my unprofessional conduct.  I continue to pray and ask God forgiveness of my wrongdoing and to provide protection upon that young lady whom I could have affected.  I’ve learned a valuable lesson that will forever be in my life.

I do humbly and respectfully request for the Naval Council of Personnel Board to strongly honor my request to upgrade my discharge from Other than Honorable to Honorable Conditions.  With this type of discharge, I will be able to receive the Montgomery GI Bill, Housing Loans and other Veteran’s benefits.  Since December 17, 2003, I have been unemployed and therefore, I had to take out a college loan to assist me in this pursuit of me obtaining a degree.

I would like to thank you in advance for your taking the time out of your busy schedule to review my application for the review of discharge and I am looking forward to hearing from you in the near future.  I will be more than happy to answer any questions or provide additional information concerning this serious and important matter.  You may reach me at (phone number deleted).

Sincerely,

J_ M_ S_ (Applicant) (social security number deleted)
(Mailing address deleted)”

Documentation

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

Applicant’s DD Form 214
Enlisted Performance Evaluation Report from 93 Mar 24 to 94 Mar 31 (2 pages)
Enlisted Performance Evaluation Report from 91 Jul 11 to 92 Jun 30 (2 pages)
Enlisted Performance Evaluation Report from 89 Nov 25 to 91 Jan 31
Enlisted Performance Evaluation Report from 91 Feb 01 to 91 Jul 10 (2 pages)
Enlisted Performance Evaluation Report from 89 Sep 16 to 89 Nov 24 (2 pages)
Enlisted Performance Record
Authority to Assume the Title and Wear the Uniform of a Second Class Petty Officer
Letter of Appreciation from Commander, Naval Training Center, Orlando, FL
Letter of Commendation from Commanding Officer, USS Kentucky (SSBN 737) (GOLD)
Letter of Commendation from Commanding Officer, Precomissioning Unit Kentucky (SSBN 737)
Letter of Appreciation from Commanding Officer, USS San Juan (SSN 751)
Letter of Appreciation from Thirty-Second Battalion, Service School Command, San Diego, CA
Certificate of Achievement, Fleet Reserve Association

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890614 - 890627	COG
	Active:   USN			890628 - 920729	HON

Period of Service Under Review:

Date of Enlistment:  920730		Date of Discharge:  960702

Length of Service (years, months, days):

	Active:    03  11  03
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)		Behavior:  4.00 (1)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM

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 3630600.

Chronological Listing of Significant Service Events:

931213:	Applicant tested positive for HIV.  Applicant counseled to not engage in sexual activity without the use of a condom and the informed consent of any sexual partners.  Applicant notified that the counseling is considered a direct order of a commissioned officer and may be punished as such if the order is violated.

941109:	General Court Martial:
	Charge I:  violation of the UCMJ, Article 90:
	Specification 1:  willfully disobey a lawful order to not engage in sexual activity in which bodily fluids may be transmitted, to advise prospective sexual partners of HIV positivity, and to engage in sexual activity with a condom.
	Charge II:  violation of the UCMJ, Article 128:
	Specification:  commit an assault by unlawfully having sexual intercourse with her in a means likely to produce death or grievous bodily harm because his seminal fluid contained a potentially deadly virus (HIV)
	Charge III:  violation of the UCMJ, Article 134:
	Specification:  wrongfully and unlawfully engage in sexual intercourse without informing that he was a HIV carrier and without the use of a condom, such conduct being prejudice to the good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.
	Findings:  to Charge I and the sole specification thereunder, not guilty, but guilty of the lesser included offense of failure to obey a lawful order under Article 92, UCMJ, to Charges II and III and the sole specifications thereunder, guilty.
	Sentence: Confinement for 11 months and 20 days, forfeiture of $500 per month for 11 months, reduction to E-1.
	CA 950417: Sentence approved and ordered executed, except for the part of the sentence extending to forfeiture of pay in excess of $200.00 pay per month for 11 months is suspended for 12 months, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.

950630:	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.

950630:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

950810:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960513:	Commanding Officer, Naval Consolidated Brig Charleston, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960602:	Chief of Naval Personnel recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960611:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960614:	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 on 19960702 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 contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 a conviction by General Court-Martial for violations of the UCMJ Article 90, violation of a lawful order, Article 128, assault with a means likely to produce death or grievous bodily harm, and Article 134, conduct prejudicial to good order and discipline in the armed forces or that brings discredit upon the armed forces.  The basis of these convictions rests upon the Applicant’s positive HIV status and his subsequent misconduct in which he engaged in unprotected sexual intercourse without the informed consent of his partner and without the protection of a condom, contrary to a lawful order.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to conform his conduct to meet the standards of discipline in the armed forces and to meet the requirements of his contract to 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.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided suffient documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, 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