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

 ex-GM3, USN
Docket No. ND04-01395

Applicant’s Request

The application for discharge review was received on 20040908.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Refused testimony of 7 character witnesses.

2.  there was no police report provided.

3.  Shown Proof of dismissed civilian charges.

4.  NCIS reprehensive did not have any knowledge of my case.

5.  NCIS never interviewed me or the alleged victim yet had an evaluation on the alleged victim and me.

6.  My discharge Characterization did not fit the alleged Crime.

7.  According to the UCMJ mistaken fact is a suitable defense.

8.  On the NCIS Summary of incident report the Rep who actually worked on the case wrote recommendations that were not taken into consideration.

9.  There was no evidence provided to the board that would lead them to their conclusion”

Documentation

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

Case Review Committee Presentation (12 pages)
MILPERSMAN 1910-212, Factors Considered in Retention or Separation
CRC Recommendations
Administrative Message, Fleet Attrition (4 pages)
UCMJ Article 120, Rape and Carnal Knowledge
Letter from Applicant
Letter of Deficiency (2 pages)
Applicant’s DD Form 214 (2 pages)
Witness Questionnaires (25 pages)
Partial Record of Proceedings of Administrative Board
Assorted MILPERSMAN Sections (6 pages)
Excerpt from UCMJ Article 120
Excerpt from 10 U.S.C. Section 504 – Persons Not Qualified

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981030 - 990302	COG
	Active:   			None

Period of Service Under Review:

Date of Enlistment:  990303		Date of Discharge:  011015

Length of Service (years, months, days):

	Active:    02  07  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  37

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.50 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC, 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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990715:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Restriction and extra duty for 7 days.  No indication of appeal in the record.

000408:	Applicant commits alleged carnal knowledge with a minor under the age of 16.

000524:	NCIS interviews Applicant.  Special Agent S_ reports that Applicant admitted knowing victim was only 14.

000814:	Circuit Court, City of Hampton, Virginia, accepts Applicant’s plea of guilty to the offense of carnal knowledge.  Court defers finding in this matter pending a presentence report.

010109:	Family Advocacy Program, Case Review Committee, substantiates child sexual abuse.  Recommendations:  Applicant must follow court recommendations and admin processing via BUPERS.

010308:	NJP for violation of UCMJ, Article 113:  Misbehavior of a Lookout.
	Award:  Forfeiture of $653.00 pay per month for 1 month (suspended 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

010322:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Award:  Vacation of previous forfeiture ($653.00 pay per month for 1 month), restriction and extra duty for 30 days, reduction in rank to E-2 (suspended for 6 months).  No indication of appeal in the record.

010614:	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.

010614:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

010727:	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, by a vote of 2-1, recommended discharge under other than honorable conditions.

010809:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010926:	CNMPC 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 20011015 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 through 5 and 8:  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 his Board was deficient in that the testimony of several of his witnesses was refused, that no police report was provided, that NCIS investigators acted inappropriately.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues.  There is no evidence in the record, nor has the Applicant produced any evidence, to support any of his contentions.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

Issue 6:  The Applicant contends that his characterization of service did not fit the alleged crime.  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.  Notwithstanding the allegations of child sexual abuse, the Applicant’s service was marred by three nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, Article 113 misbehavior of a lookout, and Article 92, violation of an order or regulation.  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.

Issues 7 and 9:  The Applicant contends that mistake of fact is a defense under the UCMJ.  The Applicant further contends that not enough evidence was provided at his admin discharge board to support his discharge and resulting characterization.  An admin discharge board need only be satisfied by a preponderance of the evidence that the Applicant committed misconduct due to commission of a serious offense.  A serious offense is defined as any offense that could merit the award of a punitive discharge if tried by special or general court-martial.  Such serious offenses include Article 120, carnal knowledge, Article 92, failure to obey order or regulation, and Article 113, misbehavior of a lookout.  In the Applicant’s case, the record of board proceedings indicates that evidence of the Applicant’s nonjudicial punishments were introduced before the board.  Furthermore, the record indicates that the Applicant’s guilty plea to carnal knowledge in civilian court was introduced before the board.  In the Applicant’s defense, testimony presented at the admin discharge board raised the issue of a mistake of fact defense in regards to the age of the alleged victim of the unlawful carnal knowledge.  After deliberating on all of the evidence, the board concluded that the Applicant had committed misconduct by commission of a serious offense, that separation was warranted and that the Applicant’s service should be characterized as under other than honorable conditions.  Despite his contentions, the Applicant has failed to demonstrate how the admin discharge board’s process was improper or inequitable.  The evidence of the Applicant’s three NJPs as well as his guilty plea in civilian court on charges of carnal knowledge was enough for the admin discharge board to reasonably conclude that the Applicant had committed misconduct due to commission of a serious offense and that a mistake of fact defense did not exist.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 120, rape and carnal knowledge, 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