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

FOR OFFICAL USE ONLY

  ex-DC3, USN
Docket No. ND05-00630

Applicant’s Request

The application for discharge review was received on 20050304.  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 20050811.  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:  GENERAL (UNDER 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:

“Conflicting judgment decisions by two separate naval officials I feel allows my application for obtaining an Honorable Discharge through further observation of personnel records and decision.”

Applicant provided the following Remarks:

“Dear Sir or Madam,

1.  I’m respectfully requesting to have my current discharge status changed from General Discharge (Under Honorable Conditions) to Honorable Discharge.

2.  The following statements are relevant to the decision, which to led my discharge for violation of article 92 (Failure to obey), and allegedly for violating articles 134 (Assault/Kidnapping) of OS2 S_ M_.  My intention was never to commit any offense.  I prided myself on being a competent and dedicated Sailor, as reflected in my unblemished record of service.  I’m not without fault, because I was in a location around events that I should not have been around.  I own up to that poor decision.  My concern is that one mistake rippled in the mind of my Commanding Officer and was translated that I committed all of the aforementioned violations, which is not true.  Impartial Administration Board members, after hearing ALL the facts and testimony agreed that the one violation (article 92) was not a commission of a serious offense, as indicated in enclosures 1 thru 3 and that violation of article 134 (Assault/Kidnapping) did not occur.  I truly think the Commanding Officer of the USS RAINER all be it with some good intention, made a rash and emotional and unjust decision.

3.  With all do respect the following are points that I feel are of importance:  On 13 April 2003 Commanding Officer P_ C. P_ made the decision to discharge me with an Other Than Honorable Discharge without an in dept investigation.  I feel his decision was pre-empted by the statements made by OS2 M_.  The reason I came to this conclusion is because there seemed to be no concern or thought that she may have been hiding certain facts to keep herself from any type of punishment.  Also, I was unable to explain my case at Captain’s Mast because I was treated as if I was guilty from the beginning.  Captain P_ was real intense, fast and very deterrent of my defense.  Petty Officer H-, OS2 M_ and myself were called in alone, one at a time as a strategy to catch me in a lie and I felt there was nothing I could do to change the outcome of captain’s mast.  I was charged with indecent assault, kidnapping and failure to obey a lawful order.  I also feel that the command was trying to pile as many charges as possible making the case all the more incriminating.  But, once I requested an administrative board I was notified that the charge of kidnapping was dropped.  At the Administrative Board there were many contradictions in Petty Officer M_ testimony:
1.  When asked did she know H_ and myself she replied not personally but, 
     admitted to feeling comfortable enough engaging in such sexual conversations  
     that are considered to be personal.
2.  During this encounter M_ received a “hicky” on her neck, to my knowledge in 
     the act of being intimate an invitation has to be allowed to have this happen.  
     Laying your head on someone’s shoulder constitutes comfort.
3.  This situation went on for about maybe 30 minutes or more.  M_ said she 
     pushed H_ away and we sat back down, therefore I was in no position to 
     impede her exit.
4.  On the subject of indecent assault M_ said that I unbuckled her belt.  When a 
      board member asked if her belt got undone she replied,” It was unbuckled, it 
      wasn’t like undone”.  And when the senior member asked at no time did petty 
      officer W_ undo your belt she replied,” Not like undo, or take it off.  I don’t 
      understand the difference between the two.  She was confused as to how her 
      belt become undone and being frequently asked the question replied that I 
      unbuckled it to escape from further questioning about it.  I did not unbuckle 
      her belt.
5.  At one point in the board I was excused from the room, Petty Officer M_ stated 
     that she was fully clothes the entire time and was asked by the Counsel to  
     describe the scars she had on her breast from a previous operation.  After 
     returning, during my testimony, I was able to describe her scars the same way 
     she did, because she did lift her shirt and exposed her breast.  Her false 
     statement was an effort to hide her actions and voluntary participation with 
     Petty Officer H_.

The statements above are not efforts to remove responsibility on my part, but to highlight that the charges article 134 (Assault and Kidnapping) were unjust and that my actions did not carry the severity of a commission of serious offense.  It is my opinion that the findings and recommendation of the Administrative Board members to retain me on active duty were disregarded.  My reduction in rank and the humiliation that I went through was a punishing experience with itself.  I had no plans of throwing seven years of my naval career away.  I planned to retire from the United States before this incident.

Respectfully, I request to have my current character of service General Discharge (Under Honorable Conditions) upgraded to an Honorable Discharge.  Thank you for your time, consideration and evaluation of my request.

Sincerely, 

[signed]  G_ W_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Applicant’s DD Form 214  (Member 1)
Commanding Officer, USS RAINIER (AOE 7), Recommendation for administrative separation, July 17, 2003  (3 pages)
Board Findings/Recommendations Sheet, dated August 22, 2002
Report and Disposition of Offense(s), dated April 12, 2003
Information Concerning Accused, dated April 13, 2003
Court Memorandum NAVPERS 1070/607, date submitted April 13, 2003
Administrative Remarks NAVPERS 1070/613, dated April 13, 2003
Record of Proceedings of an Administrative Board, undated   (Pages 10-23, 26-34, 36)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951019 - 951227	COG
	Active:   USN 			951228 - 991227	HON
	Inactive: USNR (IRR)		991228 - 000730	HON
Inactive: USANG		000731 - 001218	COG

Period of Service Under Review:

Date of Enlistment:  001219		Date of Discharge:  031008

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  DC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.67 (3)		Behavior:  4.00 (3)		OTA:  4.00

Military Decorations:  Enlisted Surface Warfare Specialist

Unit/Campaign/Service Awards:  National Defense Service Medal, Sea Service Deployment Ribbon (4), Navy “E” Ribbon, First Good Conduct Medal, Armed Forces Expeditionary Medal, Meritorious Unit Commendation

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

030412:	Counseling:  Advised of deficiency (Applicant was not to have any contact with OS2 S_ A. M_ in a personal nature or any affiliated personnel (civilian or military), (i.e., email, conversations, phone conversations, etc.), unless it’s in capacity of official duties.  Applicant will not involve other crew members through personal communications with OS2 S_ A. M_ (i.e., email, conversations, phone conversations, etc.) notified of corrective actions and assistance available.  Any further deficiencies in Applicant’s performance and/or conduct will terminate the reasonable period of time for rehabilitation that this counseling/warning entry provides and may result in disciplinary action.  Applicant did not want to make a statement.

030413:	NJP for violation of UCMJ, Article 92:
Specification:  In that Damage Controlman Second Class G_ L. W_ (Applicant), U.S. Navy, on active duty, having knowledge of a lawful order issued by his superior commissioned officer, to wit: paragraph 4.c. of the Fraternization Policy, RAINIER INST 5370.1D dated 27 February 2003, an order which it was his duty to obey, did, onboard USS RAINIER, at sea, on or about 0000, 12 April 2003, fail to obey the same by wrongfully requesting her to show her breast; and stating the comments: “you should give my boy a hand job,” “you have two black guys here, what do you want to do,” “is it me that you want, do you want me instead,” and “why don’t you just remove your bra,” or words to that effect to Operations Specialist Second Class S_ A. M_.
Violation of UCMJ, Article 134:
Specification:  In that Damage Controlman Second Class G_ L. W_ (Applicant), U. S. Navy, on active duty, did, onboard USS RAINIER, at sea, on about 0000, 12 April 2003, commit an indecent assault upon Operations Specialist Second Class S_ A. M_ by grabbing her belt and undoing her buckle, with intent to gratify his sexual desire.
Violation of UCMJ, Article 134:  Kidnapping; dismissed.
	Award:  Forfeiture of $1057.00 pay per month for 2 months, reduction to E-4.  No indication of appeal in the record.

030413:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030413:  	Applicant advised of his rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030703:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of serious offense, and by a vote of 3 to 0, the Board recommends retention.  The Administrative Discharge Board found:  “SVCM admits violation of Artical (sic) 92 member signed PG 13 indicated SVCM new (sic) command policy but commited (sic) actions anyway.”

030717:	Commanding Officer, USS RAINER (AOE 7), recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Commanding Officer’s Non-Judicial punishment held on 13 April 2003 for violation of the UCMJ, Article 92, (failure to obey order or regulation) and Article 134 (Assault).  Commanding Officer’s comments (verbatim):  “Petty Officer W_ (Applicant) has demonstrated a complete disregard for my policies and the Navy’s policies on sexual harassment and good conduct.  I cannot tolerate his actions at my command as they undermine good order and discipline and threaten the safety of my crewmembers.  Petty Officer W_ (Applicant) was found guilty at Captain’s Mast for Violation of the UCMJ Article 92 (Failure to obey an order or regulation), where he violated a Page 13 signed by him when checking onboard regarding Rainier’s Rules on Sexual Harassment and Interpersonal Relationships dated 05 March 2002.  Petty Officer W_ (Applicant) admitted to me at Mast that he invited Petty Officer M_, the victim of this assault, into a confined space with the intent to gratify himself sexually when he said he intended to commit “an adult trick”, even if he only admitted to watching the actions of Petty Officer M_ and Petty Officer H_.  With regards to the Article 134 Charge (Assault), Petty Officer W_ (Applicant) admitted to me to physically obstructing Petty Officer M_ by placing himself between her and the door and pushing her hand away from the door.  Petty Officer H_ also stated to me that Petty Officer W_ (Applicant) blocked Petty Officer M_ from leaving the space.  I am convinced that Petty Officer W_ (Applicant), although a competent worker, has committed a serious offense, represents a significant threat to my crew, and should be administratively separated from the Navy.  He has demonstrated a complete disregard for Navy Core Values.  I disagree with the findings of the Board.  I forward my strongest possible recommendation that Petty Offer W_ (Applicant) be separated from the Naval Service with an Other Than Honorable Discharge.  He is not recommended for retention.  His is not recommended for a General Discharge nor an Honorable Discharge.”

030808:	CNPC, forwarded the Administrative Separation Board findings to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) recommending overturn of the Administrative Board’s recommendation for retention and to discharge Applicant with a general (under honorable conditions) by reason of misconduct due to commission of serious offense.

030908:	ASN (M&RA) approved discharge action.

030925:	CNPC directed the Applicant's discharge with a general (under 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 20031008 with a general (under 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).

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.  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 discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Articles 92, failure to obey order or regulation and 134, indecent assault.  An administrative discharge board found, by a preponderance of the evidence, that the Applicant had committed a violation of UCMJ Article 92 by failing to adhere to the sexual harassment policy of the USS Rainier (AOE 7).  Under applicable regulations, a violation of UCMJ Article 92 is considered a serious offense.  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.

The Applicant contends that his discharge should be upgraded because different “naval officials” reached different conclusions in the processing of his case.  The evidence of record reveals that the Applicant was awarded nonjudicial punishment for violations of UCMJ Articles 92 and 134 as noted above.  An administrative discharge board found, based on a preponderance of the evidence, that the Applicant, in fact, committed a serious offense by virtue of his violation of UCMJ Article 92.  By unanimous vote, the Board further recommended that the Applicant be retained on active duty.  The Commanding Officer disagreed with the Board and recommended the Applicant be separated from the Naval service.  In accordance with regulation, the Applicant’s case was presented to the Assistant Secretary of the Navy for Manpower and Reserve Affairs for final decision.  On 20030908, the ASN (M&RA) approved the Applicant’s discharge from the Navy.  Although the Applicant may disagree with the decision of the ASN, the Board could find no impropriety or inequity in the Applicant’s discharge processing.  Although the Applicant is correct that different naval officials reached different conclusions in his case, the decision to ultimately discharge him was in strict accordance with applicable regulations.  As such, the Applicant’s issue is without merit.  Relief denied.

The Applicant implies that his discharge should be upgraded because his Commanding Officer was deterrent to his defense and made the decision to discharge him without an in depth investigation.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Commanding Officer behaved inappropriately in the processing of the Applicant’s case.  To the contrary, the evidence of record indicates that the Commanding Officer’s decision to process the Applicant for separation by reason of misconduct due to the commission of a serious offense is supported by the Administrative Discharge Board’s findings of misconduct and the ASN’s decision to separate the Applicant.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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 92, failure to obey order or regulation, 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  20374-50231.