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

 ex-HT3, USN
Docket No. ND04-00936

Applicant’s Request

The application for discharge review was received on 20040518.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “convenience of the government reenlistment code: RE-1.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 200500201.  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 and reason for 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.  “I am petitioning the board to upgrade my discharge characterization to Honorable.  To substantiate my claim I offer the following evidence for your consideration:

	a.  On 10 May 1996 an administrative board was held.  After a review of my performance the board recommended (3) to zero (0) that I receive a Honorable discharge.  (see encl. (1)).
	b.  On 17 Jun 1996 I was called to the separations office onboard the USS Theodore Roosevelt (CVN-71) which detached me from the command effective 2400, 96Jun17 to travel to Hitchins, KY. (see encl. (4)).
	c.  BUPERS//PERS//83//RMG DTE 251849ZJUL96 (encl. (2)) reaffirmed the boards finding and directed USS Theodore Roosevelt (CVN-71) to discharge me within ten (10) days of receipt of the message, specifying my discharge be under Honorable conditions.”

2.  “On 21 Jan 97 I was arrested and returned to Naval Station Norfolk and charged with Unauthorized Absence six (6) months after BUPERS Directed that I be discharged.
	Subsequently I was brought before another administrative board which in addition to the previous reasons for administrative discharge also consider that I was (6) months UA.”

3.  “I believe I have demonstrated that I was penalized for the USS Theodore Roosevelt’s failure to properly complete my discharge as directed by PERS 83.
	If the Theodore Roosevelt had completed the required paper work there would have been no UA because I was no longer on active duty and as such not required to be onboard.”

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
Report of Administrative Board of 960510(2 pages) (5 copies)
BUPERS Message 960725 (5 copies)
Timeline (5 copies)
Travel Orders 960611 (5 copies)
Termination of Govt Quarters orders dtd 960702 (5 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890209 - 890214	COG
	Active:   USN			890215 - 930212	HON

Period of Service Under Review:

Date of Enlistment:  930214		Date of Discharge:  970528

Length of Service (years, months, days):

	Active:    04  03  15		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  6 

Education Level:  12			AFQT:  33

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)		Behavior:  4.00 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (4), CGSOSR, N’E’R, NDSM, SASM (4), GCM, NUC, AFSM (2), NATOM

Days of Unauthorized Absence:  7

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:

950616:	Special Court-Martial:  Violation of UCMJ Article 92:  Dereliction of duty by not reporting larceny of a video cassette recorder.
Sentence:  Confinement for 30 days, forf. $500.00 for 1 mo. and RIR to E-3.

960214:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and by reason of weight control failure with the least favorable characterization of service as under other than honorable conditions.

960214:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960510:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and was a weight control failure and that the misconduct warranted separation and recommended an honorable discharge.

960604:	Commanding Officer recommended a general discharge by reason of misconduct due to the commission of a serious offense as evidenced by the Applicant’s court-martial on 950616.

960611:	Applicant issued NAVPER 4650/22, Travel Certificate, character of service as honorable, discharged at USS THEODORE ROOSEVELT, detached 960617 2400.

960725:	BUPERS directed Applicant’s honorable discharge by reason of misconduct due to commission of a serious offense.

970116:	Applicant apprehended by civil authority on charges:  9 felony counts of sexual assault.

970117:	Applicant to UA.

970124:	Applicant from UA.

970202:	Message from USS THEODORE ROOSEVELT to TPU NORFOLK:  ON 17 JAN 97, ORIG WAS NOTIFIED THAT SNM WAS INCARCERATED BY NORFOLK PD FOR SEVERAL FELONY CHARGES OF SEXUAL ASSAULT OF A MINOR AT THAT THE TIME OF HIS ARREST, SNM INDICATED THAT HE WAS CURRENTLY AWAITING FORMAL SEPARATION FROM THE NAVY.  AN IMMEDIATE REVIEW OF SNM’S STATUS REVEALED THAT HIS AUTHORIZED SEPARATION HAD NOT YET BEN EFFECTED.  ORIG THEN REQ BUPERS HOLD SNM’S SEP IN ABEYANCE PENDING DISPOSITION OF CIVIL CHARGES.  ON 97JAN18 SNM WAS RELATED ON HIS OWN RECOGNIZANCE AND WAS DIRECT TO REPORT TO TPU IN ORDER TO TERMINATE HIS PERIOD OF UNAUTHORIZED ABSENCE.  SNM WAS RETURNED TO MILITARY CONTROL ON 970124.

970213:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.

970213:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970218:	FAP Summary:  The case of sexual abuse of T_ P_ is substantiated.  Recommend:  Psychosexual evaluation for Applicant, children and spouse to continue treatment.

970410:	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.

970415:	Applicant’s letter of deficiency.

970429:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by NCIS Investigation.
 
970514:	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 19970528 under other than honorable conditions for misconduct due to commission of a serious (A & B).  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).

Issues 1-3.  The Applicant states that his discharge was improper because a board was held recommending discharge, his command detached him and BUPERS directed his discharge.  The Board determined that the government’s failure to discharge the Applicant was neither improper nor inequitable.  The government was obligated to process those members undergoing administrative separation for all known reasons for separation.  Prior to execution of Applicant’s Honorable discharge, the government became aware of serious criminal misconduct by the Applicant that warranted reprocessing his case for an additional reason not covered by is first administrative board.  Further, there was evidence that some of this additional misconduct occurred prior to applicant being sent home awaiting discharge.

While it is true that the government was negligent in failing to execute the discharge recommendation from the first board once it was approved, there was no substantial prejudice to Applicant.  He remained in a pay status while awaiting separation and was allowed to return home and obtain civilian employment.

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 special court-martial conviction for a violation of Article 92 of the UCMJ and he was subsequently found to have committed sexual assault on his step-son, a minor.  The Applicant’s Article 92 violation for failure to obey an order and his civil felony charges of sexual assault on a minor constitute serious offenses.  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 and falls far short of that required for an upgrade of his characterization of service.  Further, the summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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 11 Dec 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 125, sodomy, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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