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

  ex-MM2, USN
Docket No. ND05-00532

Applicant’s Request

The application for discharge review was received on 20050202.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any 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 20050608.  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: MILPERSMAN, Article 1910-142.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

“ISSUE 1:
I was separated from the United States Navy via Administrative Processing by reason of misconduct due to commission of a serious offense and for homosexual conduct. The discharge awarded is unjust because there’s nothing to substantiate the claim of misconduct or homosexual conduct.

ISSUE 2:
Prior to my administrative separation I was the subject of a Special Courts-Martial, which is what led to the action of the discharge. The discharge was not apart of the sentence from the courts-martial and should not have been a consideration in the decision of my discharge.

ISSUE 3:
During the lengthy process of the courts-martial proceedings I was promised verbally by the Judge Advocate General for Naval Submarine Support Command, Pearl Harbor as well as by my own command appointed counsel that should a discharge be awarded the characterization would be General - Under Honorable Conditions. Unfortunately, I do not have this statement in writing.

ISSUE 4:
The discharge awarded to me is seriously unbalanced when the punishment of an Under Other Than Honorable Conditions is weighed against what the alleged reasoning is for that discharge characterization. Given my background and professional track record while serving in the Navy the discharge in itself was a grave injustice. As a result, I am no longer eligible for any benefits as listed on the “U.S. Governments Benefits List As The Result Of Specific Types Of Discharges.” I have been declined for services that I should still be entitled to by administrative approval according to that same listing.”

Remarks:

“I am requesting to appear before a review board to vebally express the reasoning behind my issues and request for discharge upgrade.  I do not feel that submission of this application alone will suffice nor properly express the accurancy of the events leading up to my untimely discharge.  I look forward to having the opportunity to discuss my issues with the review board.  Thank you for you time and patience.”

Documentation

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

Applicant's DD Form 2l4
Enlisted evaluations for Petty Officer M_ A. F_ (Applicant) (20 pages)
Awards and commendations list
Letter of appreciation, dated August 22, 2003
Qualification history and schools Attended (5 pages)
Record of Trial - Special Court-Martial, dated August 21, 2003 (44 pages)
Administrative separation processing notice, dated August 22, 2003
U.S. Government benefits list for types of discharges

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961220 - 970129	COG
	Active:   USN			970130 - 001121	HON

Period of Service Under Review:

Date of Enlistment:  001122		Date of Discharge:  031125

Length of Service (years, months, days):

	Active:    03  00  04
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  68

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)		Behavior:  4.00 (4)		OTA:  3.86

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM (2), SSDR (3), NASR, GCM (2), NDSM, NAM (2), MUC, SW

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:

030821:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 92 (3 specs):
	Specification 1: Violate a lawful general regulation, to wit: Pargraph (8), SECNAVINST 5300.26c, dated 971017, Navy Sexual Harassment Policy, by wrongfully grabbing the buttocks, testes and chest of Seaman R_ from June 2002 to July 2002.
	Specification 2: Violate a lawful general regulation, to wit: Pargraph (8), SECNAVINST 5300.26c, dated 971017, Navy Sexual Harassment Policy, by wrongfully grabbing the buttocks and testes of SKSA R_ on July 2002.
	Specification 3: Violate a lawful general regulation, to wit: Pargraph (8), SECNAVINST 5300.26c, dated 971017, Navy Sexual Harassment Policy, by wrongfully grabbing the thigh of MMFN G_ by running his hand up the side of MMFN G_’s body and across his neck, kissing him on the forehead, grabbing and rubbing his testes, leaning in and blowing on his cheek and saying “here’s your notebook, now remember you own me one, one day” and running his finger between his buttocks and saying “ooh, tight ass” between September 2002 and November 2002.
	Charge II: violation of the UCMJ, Article 125 (4 specs):
	Specification 1: Commit sodomy by force without the consent of SA H_ on May 2002.
	Specification 2: Commit sodomy by force without the consent of SA H_ on 020806.
	Specification 3: Commit sodomy by force without the consent of SA H_ between September 2002 and October 2002.
	Specification 4: Commit sodomy by force without the consent of SA H_ between June 2002 and July 2002.
	Charge III: violation of the UCMJ, Article 134 (3 specs)
	Specification 1: Commit indecent assaults upon SN J_ A. R_ by grabbing Seaman R_’s buttocks, testes and chest with his hand, with intent to gratify his sexual desires on or about July 2002.
	Specification 2: Commit indecent assaults upon SKSA R_ by grabbing buttocks and testes with his hand, with intent to gratify his sexual desires on July 2002.
	Specification 3: Commit indecent assaults upon MMFN G_ by grabbing his thigh, running his hand up the side of his body and across his neck, kissing him on the forehead, grabbing and rubbing testes, leaning in and blowing on his cheek and saying “here’s your notebook, now remember you owe me one, one day” and running his finger between MMFN G_ buttocks and saying “ooh, tight ass” with intent to gratify his sexual desires between September 2002 and November 2002.
	
Findings: To Charge I and specification 2 thereunder, guilty.  To Charge I and specification 3 thereunder, guilty, excepting the words, “running his hand up the side of MMFN G_’s body and across his neck, kissing him on the forehead, grabbing and rubbing his testes, leaning in and blowing on his cheek and saying “here’s your notebook, now remember you own me one, one day: and running his finger between his buttocks and saying “ooh, tight ass” and substituting the words, “grabbing and holding MMFN G_’s testes, leaning into his face and ear and saying, “here’s your notebook, you owe me one, lose this notebook again and I will cut them off” or words to that effect.  Charge I, specification 1, Charges II and III and specifications thereunder, withdrawn.
	Sentence: To perform hard labor for 60 days, forfeiture of $500 per month for 6 months, reduction to E-5.
	CA 030903: Sentence approved and ordered executed.

030822:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and separation by reason of homosexual conduct – member engaging in, attempting to engage in, or soliciting another member to engage in a homosexual act(s).  Least favorable characterization of service possible is under other than honorable conditions.

030822:	Applicant advised of rights and having consulted with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031020:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.  Commanding Officer’s comments:  MM2 F_ (Applicant) is being processed for misconduct due to commission of a serious offense and homosexual conduct. On 21 August 2003, pursuant to his plea of guilty, MM2 F_ (Applicant) was found guilty at a Special Court-Martial for violating the Navy’s Sexual Harassment Policy.  This type of behavior does not align with the Navy’s core values and as such cannot be tolerated.  Therefore, it is my strongest recommendation that MM2 F_ (Applicant) be separated from the U.S. Navy with a general (under honorable conditions) discharge.

031105:	Chief of Naval Personnel, based on delegation authority policy granted by SECNAV (M&RA) on July 1, 2003, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031125 under other than honorable conditions for misconduct due to commission of a serious offense (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 and equitable (D and E).

Issue 1.  The Applicant states that there is nothing in his record to substantiate the claim of misconduct.  The Applicant was found guilty at special court-martial of violating Article 92 of the UCMJ.  Violations of Article 92 are considered serious offenses.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  The Applicant states that his special court-martial conviction was improperly taken into consideration with respect to his discharge and that his discharge was not a part of the sentence adjudged.  Regulations permit administrative separation processing in cases where a court-martial sentence does not include a punitive discharge.  Additionally, separation processing is mandatory if a member committed sexual harassment with unwanted physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.  The Applicant was found guilty at special court-martial of sexual harassment by wrongfully grabbing the buttocks and testes of a seaman.   The Applicant’s processing was required and his issue is without merit.  The Board also found the Applicant’s Commanding Officer’s consideration of the Applicant’s court-martial conviction when recommending the Applicant’s discharge characterization to be proper an in accordance with regulations.  Relief denied.

Issue 3.  The Applicant claims that the Judge Advocate General for Naval Submarine Support Command, Pearl Harbor and the Applicant’s “own command appointed counsel” verbally promised the applicant that he would awarded a general discharge.  The Applicant concedes that he does not have this promise in writing.  The Board found the Applicant’s statement insufficient to overturn the presumption of regularity.  While the Applicant’s Commanding Officer recommended a general (under honorable conditions) discharge on 20031020, the Applicant was notified on 20030822 that an under other than honorable conditions discharge was possible.  The separation authority, after weighing the Commanding Officer’s recommendation, directed the Applicant’s under other than honorable conditions discharge on 20031105.  The Board found no impropriety or inequity in the Commanding Officer’s recommendation or the subsequent decision made by the separation authority.  Relief denied.

Issue 4.  Despite a servicemember’s prior record of service, 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 violations of Article 92 of the UCMJ.  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.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 (formerly 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 92, failure to obey a lawful order, 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