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

FOR OFFICIAL USE ONLY

 ex-CMCN, USN
Docket No. ND05-01108

Applicant’s Request

The application for discharge review was received on 20050622.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter: 

“I feel I was unjustly separated from the Navy.”

“Dear Sirs, 
I am writing this letter in reference to my discharge in October 1993.I would like you to review my case and here are the reasons I would like you to consider me for and upgrade.

After participating the USN Mobile Construction Battalions for 14 years and 8 months on active duty.I performed my duties with out question and served my country with any orders given to me.  With out question or doubt.

From the liberation of Kuwait to deployment into Beirut Lebanon and to all peace time assignments.  I always carried out my orders to the best of my abilities

I passed the Chiefs test 10 years in a row.  The test scores were not  high enough for advancement and I was capped at E6.

I never got into any trouble  .I must have lost my head when I committed the crime I was charged with  .I did follow instructions to stay away from seaman A_.  Seaman A_ came to my office after she was told and given orders to stay away from me (CM1 L_ DAPA 20th NCR).

I would like to take this time again to apologize for my actions and hope that in the future I will be able to hold my head up high again  .I would be honored to reenlist in the Navy in which I loved so much.

Sincerely, 

[signed] S_ M. L_ (Applicant)”

Documentation

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

Character Reference letter from J_ L_, (wife), (2 pages)
DD Form 149, dated March 31, 2005
Letter from S_ and J_ L_, dated April 01, 2005
Letter from Commander, TWENTIETH Naval Construction Regiment, dated Aug 17, 1993
Report and Disposition of Offenses (3 pages), dated July 29, 1993 (2 copies)
Results of Investigation, dated August 10, 1993 (2 pages)
Letter from CUCM (SCW) J_ J. L_, dated August 04, 1993
Military Suspect’s Acknowledgement and Waiver of Rights, dated August 04, 1993 (2 copies)
Statement from Applicant (4 pages)
Enlisted Performance Evaluation Report for period of May 02, 1991 through November 30, 1991 (2 pages)
Enlisted Performance Evaluation Report for period of December 01, 1991 through November 30, 1992 (2 pages)
Witness Statement from J_ D. A_, dated August 02, 1993 (2 pages)
Witness Statement from C_ A. S_, dated August 02, 1993 (2 pages)
Witness Statement from L_ L. A_, dated August 02, 1993 (2 pages)
Witness Statement from B_ A. D_, dated August 02, 1993 (2 pages)
Witness Statement from S_ J. H_, dated August 03, 1993 (2 pages)
Statement from Applicant, dated August 31, 1993 (5 pages)
BUPERS discharge authorization, dated September 23, 1993
Letter from BUPERS to Command Career Counselor
Verification of Military Experience and Training (10 pages)
Enlisted Duty Preference Sheet
Southwest Asia Service Medal Eligibility Memorandum, dated June 17, 1991
Procurement Integrity Certification, dated June 06, 1991
Examination Profile Information 
Enlisted Performance Record Summary Sheet
Examination Verification Worksheet, dated January 05, 1993
DD Form 214
Navy Unit Commendation Citation, dated August 28, 1990 through April 01, 1991
Enlistment Extension Agreement, dated November 07, 1978
Enlistment Extension Agreement, dated January 25, 1984
Enlistment Extension Agreement, dated October 01, 1983
Separation Travel Orders  

PART II - SUMMARY OF SERVICE

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

	Inactive: Nat Guard		19760609 – 19780202		HON
Inactive: USNR		19780203 – 19781106		COG
	Active:   USN 			19781107 – 19841129		HON
	Active:   USN 			19841130 – 19871119		HON
	Active:   USN 			19871120 – 19901001		HON

Period of Service Under Review:

Date of Enlistment:  19901002		Date of Discharge:  19931001

Length of Service (years, months, days):

	Active:    03 00 00		(Total Active Duty:  14 10 24)  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  33

Years Contracted:  3

Education Level:  14				AFQT:  63

Highest Rate:  CM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3) 		Behavior:  4.0 (3) 		OTA:  3.80 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbons (4), Navy Expeditionary Medal, Good Conduct Award (3rd), Sharp Shooter M16 Rifle, Navy “E”, Navy Unit Commendation, Marksman M16 Rifle, National Defense Service Medal, Southwest Service Medal, Kuwait Liberation Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

901002:	Reenlisted this date for a term of 3 years. 

930728:	Applicant violated the UCMJ, Article 92 (disobey a lawful order, by grabbing and kissing SN A_).

930810:	Results of investigation ICO CM1 L_ (Applicant).  Petty Officer L_’s (Applicant) actions and conduct are considered sexual harassment.  He has received sexual harassment training, mast is recommended.

930818:	Applicant unauthorized absent from 0700 until 1300, on 930818.    

930831:	NJP for violations of UCMJ, Article 86 (unauthorized absence) and Article 92 (disobey a lawful order, 2 specs):
Specification 1:  Mar/Apr 1993, wrongfully kiss Seaman A_, 
Specification 2:  930728, wrongfully grab and kiss Seaman A_.
	Award:  Forfeiture of $200 per month for 2 months, reduction to E-5.  No indication of appeal in the record.

930908:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  He was advised of his rights and of his right to consult with counsel.  Furthermore, he was notified that his failure to respond within two days of this notification would constitute the waiver of his rights.  The Applicant indicated that he did not intent to respond to the notice.  

930908:	Applicant failed to respond to the notification of intended administrative separation, thereby waiving his rights to an administrative board.   

930920:	Commanding Officer, COM TWO ZERO NCR Gulfport MS, recommended to BUPERS that CT2 L_ (Applicant) be discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “I am convinced, based on the preponderance of evidence, that sexual harassment was committed by CM2 L_ (Applicant), in violation of article 92 of the UCMJ nonjudicial punishment was imposed on CM2 L_ (Applicant) as a result of his kissing a female seaman apprentice against her will in the workplace on two occasions.  CM2 L_ (Applicant) had attended a sexual harassment workshop and sexual harassment training prior to the incidents.  
Such blatant disregard of the Navy’s policy against sexual harassment and common decency is reprehensible.  IAW SECNAVINST 5300.26B and MILPERSMAN 3630600.1D(3), I recommend that CM2 L_ (Applicant) be separated from the United States Navy.  I further recommend that the discharge be characterized as Other Than Honorable. ”

930923:	BUPERS directed 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 19931001 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Certain serious offenses, even though isolated, warrant separation from the naval service.  To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a preponderance of evidence that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The Applicant’s service was tarnished by nonjudicial punishment (NJP) for violations of the UCMJ, Article 86 (unauthorized absence) and Article 92 (failure to obey an order or regulation, 2 specifications).  Reference (A) defines violations of Articles 92 (failure to obey and order or regulation) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed this serious offense.  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.  Separations under these conditions generally result in a under other than honorable conditions characterization of service.  Relief is denied.

The Applicant stated that he felt he had been unjustly separated.  The Board inferred from this statement that the Applicant considers his discharge as punishment.  For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial.  Administrative discharge processing is administrative in nature and not a form of punishment.  The administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process.  The Applicant’s issue does not merit relief.  

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.  The Board for Correction of Naval Records can make changes to reenlistment codes.  This issue does not merit relief.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  The record does document that proper convening authority directed the Applicant’s discharge and the Commanding Officer’s recommendation letter refers to the missing notification letter. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 Naval service.  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, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant submitted 63 pages of documentation that confirmed the official record.  He also submitted a letter from his wife documenting his post service accomplishments.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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.  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 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.

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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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