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

 ex-FC3, USN
Docket No. ND04-01107

Applicant’s Request

The application for discharge review was received on 20040629.  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 EAOS.  The Applicant requests a documentary record review.  The Applicant listed McCormack & Associates as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization or narrative reason of the Applicant’s service was discovered by the NDRB.  However, the Board discerned that the Applicant’s discharge was inequitable.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall change.  The discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly 3630900).  The separation code will change to: JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The Petitioner, at the time of his discharge from the U.S. Navy, was a 21-year old man with an outstanding future in the Navy and in civilian life.  He came from an outstanding home, living with his mother and her husband who is an attorney and former prosecutor, until he was 16 years of age.  Having been accused of a crime of rape, the Petitioner was faced with the inherent risk of being convicted, dishonorably discharged from the Navy, being confined for life, and a life-long obligation to register as a sexual offender under state and federal registries.  The Petitioner readily acknowledged engaging in sexual intercourse with the woman who was in his bed, but her belated claim that she was asleep and did not consent to the sexual act presented the proverbial “he said-she said” dilemma and the attendant risks.

Unquestionably, the Petitioner had the right to proceed to trial by General Court-Martial to contest the charge of rape and while he was advised by his counsel that there was a strong likelihood of an acquittal, his counsel and his stepfather (an attorney and former prosecutor, and counsel of record at that time) were obligated to explain to him that there was an inherent risk that if he went to trial, he could be convicted and face the consequences of possible prison, punitive discharge, and registration as a sexual offender for the rest of his life.

Those risks were untenable at best! It being incumbent on his counsel to ascertain what options were available to the Petitioner, counsel solicited through the Trial Counsel the option of the Petitioner avoiding trial by submitting a request to be discharged in lieu of trial by court-martial.  Having secured favorable indications to the effect that such a discharge would likely be approved, counsel prepared a request for discharge in lieu of court-martial.

Pursuant to MILPERSMAN 1910-106, a request for discharge in lieu of trial by court-martial must contain a statement by the Accused that he has committed an offense cognizable under the Uniform Code of Military Justice.  Specifically, Paragraph 3 of the Request for Separation in Lieu of Court-Martial form requires that the offense be “the offense charged or a lesser included offense."

In his request for discharge in lieu of trial by court-martial, the Petitioner stated the following:

“I admit that I am guilty of (1) violation of the UCMJ, Article 134 (indecent acts with another), to wit: that on or about 24 May 2002, I wrongfully engaged in a sexual act with Seaman E_ E. S_ in a public setting under circumstances where my conduct was to the prejudice of the good order and discipline of the armed forces or was of a nature to bring discredit upon the armed forces.  I agree that the fact that the sexual act did not occur behind a locked door, when other persons were in the area, constitutes an act of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations.”

In light of the decision of the U.S. Supreme Court Lawrence v. Texas, 123 S.Ct. 2472 (2003) which addresses consensual sodomy, the Petitioner requests consideration on this issue.  In Lawrence, the Court held that private sexual conduct between consenting adults is not a criminal act.

In United States v. Leak, 58 N.J. 869; 2003 CCA Lexis 162, and United States v. Izquierdo, 51 N.J. 421; 1999 CALF Lexis 1245 (C.A.A.F. 1999), the Court of Appeals of the Armed Forces has held that consensual sex between consenting adults is not inherently indecent.  The Court has held that fornication, when committed “openly and notoriously” is an “aggravating circumstance sufficient to state an offense under Article 134.” (Izquierdo, 51 N.J. at 422, citing United States v. Berry, 6 CMA 609, 614 (1956).) The Court opined that an act is “open and notorious” when the “participants know a third person is present.” (Izquierdo, 51 N.J. at 423.) In United States v. Sims, 57 M.J. 419, 421 (CALF, 2002), the Court has expanded the definition of “open and notorious” to include “circumstances that it is reasonably likely to be seen by others even though others do not actually view the acts.”

In order to substantiate the basis for his request for discharge in lieu of trial by court-martial, the Petitioner stated that his act of having sexual intercourse with the female was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces because “the sexual act did not occur behind a locked door, when other persons were in the area.” The sexual intercourse however did occur behind a closed door and in the privacy of his bedroom at between 0400-0430, well after everyone had left the party, leaving only the Petitioner, his roommate, and Seaman S_, in the apartment.

In the Sims case, the factual scenario was strikingly similar to the Petitioner’s case.  The sexual contact occurred behind closed, but unlocked, doors.  The room was the private bedroom of the accused.  The Court found that when the accused is in his own bedroom, there is a greater expectation of privacy (i.e. that someone would not walk in on him).  Like in Sims, the Petitioner was also in his own bedroom and the sexual act occurred behind closed doors.  There is little chance that anyone would have walked in on the sexual act, especially in light of the late hour and the fact that no on else was awake at that hour of the night.

It should also be noted that, in Sims, the accused had entered into a stipulation with the Government where he agreed that “there was a substantial risk that his activity could be discovered,” (57 N.J. 419, 422).  The Court held that the “appellant’s conclusory stipulation, without any additional facts to distinguish this case from Izquierdo (where the sex had taken place in a shared barracks room where the door was unlocked) is inadequate to establish a factual predicate for ‘open and notorious’ sexual conduct.” Id. at 422 (parenthetical comment added).  The court went on to find the guilty plea improvident.  This is important in the present case in that it may be argued by the Government that the Petitioner had earlier agreed that his conduct satisfied the elements of a charge of “Indecent Acts” and he should not be heard now to say differently after he has already gotten the benefit of his bargain.  As in Sims, the Petitioner should not be held to his earlier statement as it was induced by the threat of imprisonment and other punishment associated with a charge of rape.

This Board is the Petitioner’s only avenue of redress for the correction of the characterization of his discharge for indecent acts.  It is apparent from considering the facts of the Sims case that had the Petitioner gone to court and been convicted of the lesser included offense of Indecent Acts with Another in violation of Uniform Code of Military Justice, Article 134, his conviction could not stand scrutiny and would have to be reversed and set aside on appeal.

If a criminal conviction could not stand appellate scrutiny, then clearly an administrative discharge in lieu of trial for the same conduct can not stand scrutiny.

During his enlistment, the Petitioner received several letters of commendation and certificates of achievement.23 The Petitioner requests the board consider these milestones.

The Petitioner respectfully requests he be granted the relief sought herein.”

Documentation

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

Petition for review of military discharge with attachments A-W

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	981103 – 990823	COG

Period of Service Under Review:

Date of Enlistment:  990824		Date of Discharge:  030326

Length of Service (years, months, days):

	Active:    03  07  03
	Inactive:  None

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

Education Level:  12			AFQT:  69

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  None Found		Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

030108:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant admitted he was guilty of the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 134, by wrongfully engaging in sexual acts with SN S_ in a public setting on 020524.  The Applicant requested discharge under honorable conditions (general) but understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. 

030108:	The Commander, Navy Region, Mid-Atlantic, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial under other than honorable conditions, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030326 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (D and E).

Issue 1.   The Board determined that the facts of the Applicant’s conduct did not constitute the offense under the UCMJ for which the Applicant was separated in lieu of a court-martial.  Since the Applicant did not commit the offense for which he was administratively separated, the narrative reason for separation is equitably changed to secretarial authority.  Therefore, relief to the narrative reason for separation is granted. 

The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.”  A review of Applicant’s records indicated an honorable discharge was warranted.  There was no adverse information that would have warranted a less favorable characterization.  Therefore, full relief is granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 134, indecent acts, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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