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

   ex-HN, USN
Docket No. ND05-00462

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050517.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board’s vote was four-to-one that the character and the narrative reason for discharge shall change, however, the Board voted three-to-two that the characterization shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164 with a separation code of JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “REASON FOR DISCHARGE WAS COMMISSION OF A SERIOUS CRIME.  I HAVE BEEN FOUND NOT GUILTY OF THIS CRIME BY THE SUPERIOR COURT, STATE OF CALIFORNIA VIA DNA ANALYSIS AND TRIAL BY JURY.  ALSO I REQUEST A CHANGE TO MY CHARACTER OF SERVICE FROM AN RE4, VIA SUPPORTING DOCUMENTS ENCLOSED.”

Documentation

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

E-mail to Applicant from National Personnel Records Center, dated January 2, 2005
    (3 pages)
E-mail to Applicant from National Personnel Records Center, dated January 3, 2005
    (2 pages)
E-mail from G_ A. H_, dated April 15, 2002 containing message from
    COMNAVPERSCOM Millington, TN, dated April 9, 2002 (2 pages)
Letter from G. A. H_, Officer in Charge, dated December 18, 2001
Petty Officer Indoctrination Course Certificate of completion, dated December 19, 2001
U.S. Naval Criminal Investigative Service report, dated April 17, 2002 (2 pages)
U.S. Naval Criminal Investigative Service report, dated November 1, 2001 (2 pages)
Laboratory Exhibit Listing and Final Division Report, dated March 21, 2003 (containing
    reports dated March 11, March 16, and July 26, 2001 (6 pages)
No-fee Copy Order for certified copy of Applicant's criminal case minutes/register of
    actions
Minute order from Superior Court, Metropolitan Division, Kern County, dated October
    29, 2003 (4 pages)
Register of actions, dated January 5, 2004 (14 pages)
Evaluation Report and Counseling Record (NAVPERS 1610-2), undated/unsigned
Evaluation Report and Counseling Record, signed by Applicant on July 31, 2001
Letter of appreciation, dated August 25, 2000
Letter of commendation, dated September 30, 2000
Letter of appreciation, dated November 3, 2001
Thank you letter from S_ L. A_, Officer in Charge, undated
Forwarding endorsement on letter of appreciation, dated July 3, 2001
Character reference from Dr. M_ R. G_, Optometrist, dated February 27, 2002
Character reference from CDR E_ H. S_, USN, dated February 22, 2002
Character reference from C_ K_, dated August 25, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990527 - 990826	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990827		Date of Discharge:  020411

Length of Service (years, months, days):

	Active:    02  07  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12-month extension)

Education Level:  12			AFQT:  39

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)		Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

001222:	Incident Report: U.S. Naval Criminal Investigative Service (NCIS) learned from a USMC dependent minor living aboard the Naval Air Weapons Station, China Lake, CA that a 13 year-old minor allegedly had sexual intercourse with a 19 year-old active duty Sailor on 001208.

010405:	NCIS interim report of investigation provides detailed case summary of
		alleged sexual intercourse and contains 12 exhibits including initial results
		of U.S. Army Criminal Investigation Laboratory, Forest Park, GA.
Investigation is pending completion of Applicant's medical records, interview with the alleged victim, and DNA comparison with USACIL serology report.

010607:	NCIS interim report of investigation provides updated detailed case
summary including details of command-authorized search allowing retrieval of blood from Applicant and contains an additional six exhibits including Applicant's DNA match with USACIL serology report.

010810:	NCIS interim report of investigation provides updated detailed case
summary and contains an additional three exhibits including USACIL .

011010:	Family Advocacy Program Case Review Committee votes 4-to-1 that allegations of sexual abuse of a minor by the Applicant are substantiated and recommends referral to command for administrative actions.

020114:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense (sexual abuse of a minor).  The least favorable characterization of service possible is Other Than Honorable.

020114:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020125:	Commanding Officer, Naval Hospital Twentynine Palms, CA recommended to Commanding General, MAGTFTC, MCAGCC discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (sexual abuse of a minor).  Commanding Officer’s comments (verbatim): HM3 E_ (Applicant) is being processed for administrative separation following substantiation of Family Advocacy Case Review Committee on 011010 for sexual abuse of a minor.  I recommend that HM3 E_ (Applicant) be separated from the United States Navy by reason of misconduct due to commission of a serious offense and that his discharge be characterized as under other than honorable conditions.  His actions are incompatible with naval service and disruptive to the command’s morale, good order, and discipline.

020301:	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.

020306:	Counseling Entry:  Advised of deficiency (Violation of Article 92: Failure to obey a lawful order or regulation).  Cited by China Lake Police Department on or about 0223, 011222, for underage drinking and driving under the influence; citation forwarded to East Kern Superior Court.  Notified of corrective actions and assistance available and advised of consequences of further deficiencies.

020327:	Commanding Officer, Naval Hospital Twentynine Palms, CA forwards results of administrative discharge board to COMNAVPERSCOM recommending approval of board's recommendations (discharge under other than honorable conditions due to the commission of a serious offense).

020409:	COMNAVPERSCOM Millington TN directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (sexual abuse of a minor).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020411 under other than honorable conditions for misconduct due to commission of a serious offense (sexual abuse of a minor) (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 but not equitable (C, D, and E).  The decision was four-to-one that the character and the narrative reason for discharge shall change, the Board voted three-to-two that the characterization should be general (under honorable conditions).

Issue 1:  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that relief was warranted based upon equity.  While not binding upon the NDRB or upon any separation authority, the Board considered the fact that the Applicant was acquitted, in a trial-by-jury in a superior court of the State of California, of the civilian charges resulting from the circumstances for which he was discharged from the Naval service.  This acquittal, in and of itself, does not provide the basis for the change in characterization of the Applicant's service.  A determination of guilt in a civilian criminal court must be reached beyond a reasonable doubt while findings of an administrative discharge board need only be based on a preponderance of the evidence presented.  For this reason, the Board found it necessary to examine the specific evidence considered by the administrative discharge board relating to the acts, omissions, or circumstances alleged in the Administrative Separation Processing Notice of 020114 given to the Applicant by his command.

After a thorough review of the records, the Board determined that the testimony of the
15-year-old neighbor, the Naval Criminal Investigative Service (NCIS) investigations, 
the DNA tests, and the Family Advocacy Case Review Committee (FA CRC) proceedings, all of which were presented to the Applicant's administrative discharge board, failed to establish a preponderance of evidence supporting misconduct by reason of the commission of a serious offense.  This determination is based on the following reasoning:
o	Testimony of the 15-year-old neighbor.  The testimony and statements provided by this individual were not first-hand accounts of the alleged incident but were based upon only what the alleged victim told her.  This individual, within the same testimony and statement available to the administrative discharge board, discredits the alleged victim, as shown by the following statements:
•	"She is someone who you might not believe at face value unless there is evidence to back her up";
•	"I would take everything that she says with a grain of salt"; and
•	"She would dress like she just, sorry to say this, but she looked like a slut and she acted like one too.  She thought she could get any man she wanted and she told me about it."
The Board found that this individual's testimony and statements did more to
discredit the alleged victim than to substantiate the finding of misconduct.
o	NCIS investigations.  On 010318, a Reporting Agent (RA) for the NCIS stated that "without [the alleged victim's] account of the alleged sexual allegations, the investigation could not go forward and this investigation would continue to go unsolved."  The alleged victim never provided a statement to NCIS and nowhere in the NCIS, administrative discharge board, or FA CRC documentation does the alleged victim substantiate the Applicant's misconduct.
o	DNA tests.  The NCIS investigation revealed a semen stain found on a couch cushion located in the Applicant's home and that the DNA from the semen stain matched that of the Applicant.  Additionally, a minor DNA profile not matching the Applicant was extracted from the same sample.  While evidence of an unidentified minor DNA profile does raise some suspicion, by itself, this evidence does not substantiate the Applicant's misconduct.  For example, despite NCIS request, the alleged victim never provided a DNA sample of her own to compare with this minor DNA profile.  Likewise, the semen stain was found in the Applicant's domicile where the Applicant was sexually active with his wife.  Furthermore, the Applicant and Applicant's wife stated the Applicant masturbated on the couch where the stain was found.  These facts establish the insufficiency of the DNA tests to substantiate the Applicant's misconduct by a preponderance of the evidence.
o	FA CRC proceedings.  The allegations of sexual abuse of a minor were referred to the FA CRC, which found the allegations to be substantiated.  The findings of the Committee, however, in the opinion of the NDRB, are not supported by the facts and circumstances of the case.  The Committee found, as noted in the Basis for CRC Decision section of the minutes, that the NCIS reports (to include DNA evidence) as well as the third-party interview of the 15-year-old neighbor were "Decisive" pieces of evidence in substantiating the allegations.  As discussed in detail above, both of these pieces of evidence fail to support the Applicant's alleged misconduct.  The vote of the FA CRC was, in fact, four-to-one with the senior member of the Committee (Physician, Alternate Chair) recognizing the weakness of the evidence and voting that the allegations were unsubstantiated.  The Dissenting Opinion section of the FA CRC minutes states that the "Alternate chair voted to [sic] unsubstantiated, unresolved based on conflicting information and no statement from victim."  Additionally, the Risk Assessment Findings section of the minutes states that the "Mothr [sic] appears to be protective of both daughters.  however [sic], failure to allow access to the minor child creates suspicion that the family is hiding something."

The Board decided that the Applicant warranted a partial upgrade in the characterization of his service to general (under honorable conditions).  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.  A general (under honorable conditions) discharge is warranted when negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a formal counseling entry on 020306 for underage drinking and for driving under the influence (DUI).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects a failure to meet the requirements of his contract with the U.S. Marine Corps and warranted only the partial upgrade to the characterization of discharge.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, the 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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 
25 Jan 01 until 21 Aug 02, Article 1910-142 (formerly 3630605), 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.

E.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134 Indecent act, liberties with child if adjudged at a Special or General Court-Martial.

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