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

   ex-RPSN, USN
Docket No. ND05-00537

Applicant’s Request

The application for discharge review was received on 20050203.  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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

Action Memorandum from Administrative Aide to the Secretary of the Navy, dated 
    January 26, 2005
Letter to the President of the United States from the Applicant, undated
Receipt of Cremated Remains and Release of Liability, Inglewood Park Cemetery, dated
    September 21, 2004
Letter to the President of the United States from the Applicant, dated June 15, 2004
Application and Permit for Disposition of Human Remains, State of California, dated
    September 27, 2004
Immigration and Naturalization Service Decisional Document, dated April 22, 2003
    (4 pages)
Master of Arts Degree in Organizational Management, University of Phoenix, dated
    September 30, 2004
Bachelor of Science Degree in Technical Management, DeVry Institute of Technology,
    dated February 25, 2000
Associate of Applied Science Degree in Electronics, DeVry Institute of Technology,
    dated February 26, 1999
DeVry Institute of Technology certificate of participation in Commencement
Applicant’s resumé
Certificate of Death, California Department of Health Services, dated September 27,
    2004
Twelve pages from Applicant’s service record
One page printed from INS Experts web site, dated April 23, 2003
Letter to the Applicant from the Office of the Secretary of the Navy White House Liaison
    Office, dated January 21, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	831031 - 831109	COG
	Active:   USN			831110 - 870827	HON

Period of Service Under Review:

Date of Enlistment:  870828		Date of Discharge:  910724

Length of Service (years, months, days):

	Active:    03  10  27
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rate:  RP2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.89 (7)		Behavior:  3.71 (7)		OTA:  3.63

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, MUC, BER, NAM, RR(SS), SSDR (3), FMFR, AFEM, SWAR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

870828:	Applicant reenlisted for 4 years.

901014:	Counseling Entry:  Advised of deficiency [You reported late for TAD at “C” school.  A female student was in your quarters while at “C” school at Meridian, MS contrary to regulation.  You have made “sexual harassment” remarks to active military females while they were on duty.  You were observed cheating on a naval service examination.  You were disrespectful to an instructor while at “C” school.  The misconduct you exhibited while at “C” school made the Commanding Officer, NTC, Meridian, MS terminate you from RP “C” school.].  Applicant notified of corrective actions and assistance available, and advised of consequences of further deficiencies.

910603:	Charges preferred to special court-martial for Violation of the Uniform Code of Military Justice (UCMJ) Article 86: Absent from unit from 2400 on 900708 to 1300 on 900709; Violation of Article 91: Disobey lawful order to stay in class room on 900718; Violation of Article 93 (2 specs): (1) Sexually harassing Petty Officer 3rd Class K_ L. T_ by making advances for dates with sexual overtones, commenting on her physical anatomy, continually calling her “baby”, “darling” and “honey” between 880501 and 900521, (2) Sexually harassing Petty Officer 3rd Class T_ H_ on various occasions at her office by grabbing her shoulders and placing his lips upon hers and forcefully sticking his tongue into her mouth, by making phone calls to her at work telling her how sexy she looked in dungarees and how big her butt was, and by stating that "she has a big juicy butt" and he “knows she could make a man feel good” between 881001 and 891231; ; Violation of Article 128 (2 specs): (1) Unlawfully grab Petty Officer 3rd Class K_ L. T_ by the elbows and forcefully pull her towards him, (2) Unlawfully grab Petty Officer 3rd Class K_ L. J_ by the shoulders and forcefully pull her towards him; Violation of Article 134 (4 specs): (1) Wrongfully communicate to Petty Officer First Class K. M. J_ a threat by saying “Get out of my way, I don’t know what I might do to you.” on 900718, (2) Wrongfully communicate to Petty Officer First Class L_ H. O_ a threat by saying “I will get you.” on 910320, (3) Have a woman in his bachelor enlisted quarters room on 900721, which conduct was prejudicial to the good order and discipline in the armed forces, (4) Commit an indecent assault upon Petty Officer Third Class T_ H_  by grabbing her shoulders, forcefully pushing her up against a wall and holding her there against her will, and by placing his lips upon hers and forcefully sticking his tongue in her mouth, and by kissing her neck with intent to gratify his sexual desires between 881001 to 891231.

910710:	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 stated he understood the elements of the offenses with which he was charged, and voluntarily admitted that he committed the following acts of misconduct, which render him triable by military court-martial:  Sexual harassment of Petty Officers Third Class K. L. T_ and T. H_, Assault on Petty Officer Third Class K. L. T_ and wrongful communication of a threat to Petty Officer First Class K. M. J_.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant 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.

910710:	Applicant requests that, if his administrative separation is approved, he be administratively reduced to the paygrade of E-3.

910716:	Applicant administratively reduced to paygrage E-3.

910716:	GCMCA, Commanding General, 3d Marine Aircraft Wing, Marine Corps Air Station, El Toro, CA approved the request for an administrative separation in lieu of a trial by court-martial, directed Applicant’s discharge, and forwarded information copy to COMNAVPERSCOM.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910724 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 and equitable (D and E).

The Applicant introduced no decisional issues for consideration by the NDRB.  As such, the Board reviewed the Applicant's military records to determine if his discharge from service was proper and equitable and, thus, upgrade to his characterization of service warranted.

The Board found that the Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant was afforded the appropriate due process during the processing of his case.  The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial after consulting with counsel, who fully advised him of the implications of his request.  The Applicant stated he understood the elements of the offenses with which he was charged, and voluntarily admitted that he committed acts of misconduct that rendered him triable by military court-martial.  

Further, the Applicant's misconduct is clearly documented.  The NDRB found that this misconduct outweighed any mitigating and extenuating factors contained in the Applicant's record.  Aggravating factors noted by the Board included a formal counseling entry for six deficiencies in performance and conduct and preferral of charges to a special court-martial for violations of the following articles of the UCMJ:  86 Unauthorized absence, 91 Disobeying a lawful order, 93 Sexual harassment (2 specifications), 128 Assault (2 specifications), 134 Communicating a threat (2 specifications), 134 Conduct prejudicial to good order and discipline, and 134 Indecent assault.  An upgrade of the Applicant's discharge is not warranted.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits (which the Applicant has provided), verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant has not provided sufficient documentation for the Board to consider.  Relief on this basis is not possible at this time.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 93 Cruelty, maltreatment of subordinates 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  DC  20374