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

FOR OFFICAL USE ONLY

 ex-SH3, USN
Docket No. ND05-00823

Applicant’s Request

The application for discharge review was received on 20050413.  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:  UNDER OTHER THAN 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:

“Respectfully requesting my current discharge status to be changed to honorable.  In respect to be able to re-enter the military, to carry out my career.  Times are really hard right now and I’ve been turned away from Gov Jobs due to my discharge status. I believe I was unlawfully targeted and was not giving a fair chance.”

Applicant’s Remarks: 
“Dear Sir or Ma’am,

Please reconsider this application on changing my current discharge status.  The military was all I know and I am willing to do anything to be able to be accepted back in the military.  I am currently trying to raise my two year old daughter and I need the stability that the military provided for the both of us.  Please, I need to get back in the military and serve my country.”

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215
Evaluation Report & Counseling Record, dated December 31, 2001 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990223 - 990503	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990504		Date of Discharge:  030214

Length of Service (years, months, days):

	Active:    03  09  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  SH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)		Behavior:  3.00 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy Battle “E” Ribbon (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:

000803:	Applicant directed to Mandatory Command Fitness Enhancement Program because of PRT failure of 000526.

021230:	Military suspect’s acknowledgement and waiver of rights.

030106:	NJP for violation of UCMJ, Article 134 (2 specs):  Indecent assault, Spec 1:  Did on or about 25 February 2002, commit an indecent assault upon Ms. J_ R. H_, a person not his wife, by grabbing her left breast, with intent to gratify his sexual desires, Spec 2:  Did on or about 25 February 2002, commit an indecent assault upon Ms. J_ R. H_, a person not his wife, by grabbing her blouse and attempting to pull it up, with intent to gratify his sexual desires.
	Award:  Restriction for 60 days.  No indication of appeal in the record.

030106:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030106:  	Applicant advised of his rights and having elected not to consult with qualified counsel, elected to waive all rights.

030107:	Commanding Officer, USS THOMAS S. GATES (CG-51), recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.  Commanding Officer’s comments (verbatim):  “SH3 A_ (Applicant) plead guilty to violating UCMJ Art 134, Indecent Assault, at Captain’s Mast on 06 Jun 03.  His conduct is prejudicial to good order and discipline and cannot be tolerated as a member of the Navy, let alone as a member of a mixed gender crew.  For the good of the Naval Service I recommend that he be discharged with a characterization of service of Under Other Than Honorable.”

030113:	Commander, Naval Surface Group TWO authorized the Applicant's discharge under other than 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 20030214 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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 and equitable (C and D).

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.  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 an incident in which he indecently assaulted a female civilian by wrongfully touching her breast and attempting to lift her shirt.  This misconduct resulted in a nonjudicial punishment proceeding for two violations of UCMJ Article 134, indecent assault.  Under applicable regulations, a violation of UCMJ Article 134 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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.

There is no requirement or law that grants recharacterization solely on the issue of improving employment opportunities 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 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 134, indecent assault, 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 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.

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