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

  ex-AE2, USN
Docket No. ND05-00218

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed Civilian Counsel as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.   

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4 to 1 that the character and reason for the discharge shall change.  The discharge shall change to:  HONORABLE/ SECRETARIAL AUTHORITY, Separation Code “JFF”, authority: NAVMILPERSMAN, Article 1910 - 164.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s/counsel’s issues, as stated on the application:

“The reasons why I contend that my discharge should be upgraded to Honorable follow:

1.  My lawyer’s request for a continuance of my 24 September 1998 administrative discharge hearing was unjustly denied.

2.  The Senior Member of my administrative discharge board falsely concealed and/or denied information which should have disqualified him.

3.  My administrative discharge hearing was conducted without me being present.  Consequently, I was administratively discharged by the Board  which never heard from me or my alleged victims, and, when a jury heard that testimony, I was acquitted of all charges against me.

4. Under applicable regulations, or at least in fairness and justice, my administrative discharge hearing should not have been conducted until after the civilian charges against me were resolved.

5.  Contrary to what was alleged at my administrative discharge board hearing, I was not UA at the time of that hearing.

6.  I was found not guilty of the civilian charges against me, yet the Assistant Secretary of the Navy refused to reconsider my discharge once that acquittal occurred.

7.  My arrest on the charges which led to the aforementioned incarceration has been expunged.

A complete description of the errors and injustices outlined above follows.”     

Documentation

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

Factual Background Information (8 pages)
Attachment NO 2 List of Enclosures (2 pages)
Letter from BUPERS Inspector General, dated November 23, 1999
Bureau of Naval Personnel Inspector General Investigation of Allegation Report (6 pages)
Notification/Statement of Awareness (3 pages)
Administrative Board Appointment Letter (2 pages)
Record of Proceedings of Administrative Board (100 pages)
Court Affidavit of W_ M. F_. Esq., to BCNR (3 pages)
Letter from C_ B_, Assistant Secretary of the Navy (Manpower & Reserve Affairs), dated January 10, 2000
Letter of Response from C_ B_, Assistant Secretary of the Navy (Manpower & Reserve Affairs), dated March 17, 2000
Letter from Attorney W_ M. F_, dated March 23, 2000
Letter of Response from C_ B_, Assistant Secretary of the Navy (Manpower & Reserve Affairs), dated May 2, 2000
Court Order from District Court of Oklahoma County State of Oklahoma, dated March 1, 2002 (3 pages)
Letter from Attorney W_ M. F_, dated September 18, 1998
FedEx Receipt
Transaction Report (3 pages)
Letter from Commander, Strategic Communication Wing ONE, dated August 12, 1998
Memorandum for Commander, Strategic Communication Wing ONE, dated September 22, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870309 - 870726	COG
	Active:   USN 			870727 - 911226	HON
Active:   USN 			911227 - 950125	HON

Period of Service Under Review:

Date of Enlistment:  950126		Date of Discharge:  981024

Length of Service (years, months, days):

	Active:    03  08  28		Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  77

Highest Rate:  AE1  (Frocked)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.25 (4)		Behavior:  3.50 (4)		OTA:  3.72

Military Decorations:  Navy & Marine Corps Achievement Medal (2)

Unit/Campaign/Service Awards:  National Defense Service Medal, Sea Service Deployment Ribbon (2), Armed Forces Expeditionary Medal, Southwest Asia Service Medal, Navy Unit Commendation Ribbon, Coast Guard Special Operations Service Ribbon, Kuwait Liberation Medal (Saudi Arabia), Kuwait Liberation Medal (Kuwait), Combat Action Ribbon, Battle “E” Ribbon, Marksman Pistol Ribbon, Marksman Rifle Ribbon, Good Conduct Medal (2)

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:

950126:	Reenlisted at AIMD NAS Miramar, San Diego, CA for 4 years.

970614:	Applicant arrested and charged in Oklahoma County, Oklahoma for 5 counts of sexual offenses against a child.

980721:	Applicant arrested and charged in Oklahoma County, Oklahoma for 3 counts of sexual offenses against a child.

980814:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Oklahoma City Police Department Crime Report 97-045331 and 97-045332 of 12 May 1997; Oklahoma City Police Department Report 98-065060 of 16 July 1998; and NCIS Investigative Action of 16 July 1998.

980814:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

980909:	Administrative discharge board appointed.

980924:	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.

981002:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981021:	Commander, Naval Air Force, U.S. Pacific Fleet authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990625:	Applicant’s case combined for trial before District Court of Oklahoma County, State of Oklahoma and Applicant acquitted by a jury on all counts.

020301:	Expungement Order from District Court of Oklahoma County State of Oklahoma.  Applicant, having been acquitted of all charges, is entitled to an expungement of his records under 22 O.S. 18(1).  It is therefore ordered adjudged and decreed that Applicant is entitled to his record being expunged by all agencies and departments pursuant to Title 22 §18 and 19 of the Oklahoma Statutes.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981024 under other than honorable conditions for misconduct due to commission of a serious offense (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper and inequitable (B and C).

In the course of reviewing the Applicant’s service record, transcript of the administrative discharge board, transcript of the testimony of the alleged victims, and police reports, the Naval Discharge Review Board concluded that the Applicant’s discharge is improper and inequitable.  The Applicant was originally processed for administrative separation by reason of misconduct due to the commission of a serious offense.  The factual basis for the Applicant’s processing related to civilian misconduct resulting in the Applicant being charged with eight counts of sexual misconduct against four separate children.  Prior to his civilian trial, an administrative discharge board, with the Applicant in absentia and relying exclusively on police reports and transcripts of witness testimony, concluded unanimously that the Applicant committed misconduct, that the misconduct warranted separation and the appropriate characterization of service is under other than honorable conditions.  Subsequent to his discharge, the Applicant faced trial in the District Court of Oklahoma County, State of Oklahoma on eight counts of sexual misconduct with children.  On 1990625, the Applicant was fully acquitted on all counts against him and on 20020301, the District Court of Oklahoma County, State of Oklahoma ordered an expungement of his record based upon the acquittal.  

The Applicant now applies to this Board for an appropriate change in his characterization of service based upon his acquittal in civilian court.  The NDRB concluded by a vote of 4 to 1 that relief is appropriate.  For criminal convictions in civilian courts, Naval regulations hold that their findings are binding on administrative discharge boards.  Although acquittals are not binding per regulation, they are extremely persuasive.  As such, the majority concluded that the Applicant’s discharge is inequitable based upon the acquittal by the Oklahoma district court   The Board voted 4 to 1 to change the Applicant’s character of service to Honorable and the narrative reason for separation to Secretarial Authority.  Relief granted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional relief in this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, 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 V, Para 502, Propriety.

C.  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