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

FOR OFFICIAL USE ONLY

 ex-YNSR, USN
Docket No. ND05-01325

Applicant’s Request

The application for discharge review was received on 20050809.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413.  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 and reason for discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“To the honorable Naval Council Board: I hereby present my plea in regard to my discharge-which was inequitable because it was based on one isolated incident in 84 months of continuous honorable service with absolutely no adverse action.  My entire military career from July 1989 to April 1997 had exemplified nothing less that the highest level of professionalism and service set by the standards of the United States Navy/Armed Forces.  My request is that my discharge be upgraded to a General Discharge.  Prior to this one isolated incident, (which I’ll bring to your attention shortly) my military career had been impeccable marked by numerous awards, medals, with letters of commendation and appreciation.  My two most precious honorary awards received are the Good Conduct Award and the Navy Achievement Medal (which I was nominated again for the second time to receive in 1997).  I continuously demonstrated myself as a professional sailor in and out of the uniform availing myself to serve in other projects such as: the military color guard at COMOPTEVFOR for various adopt-a school programs.  My military service record along with my evaluations will attest to the fact that I was honored to serve as a sailor in the top elite military force in the world.  I am proud to have served in U.S. Navy; for I love the military with a strong passion.  However, my (girlfriend) accuser found in necessary in attempting to scar my name and end what I call an extraordinary career base on personal feelings she had about me and the direction in which our relationship together was heading; (her accusations lacked greatly in evidence) at the time that I just made E-5, ready to re-enlist for the second time, and was about to be honored with my second NAM.  Today, the accuser and I are on speaking terms and I hold nothing against what was done by her; (she have shown great resentment of what had all transpired).  Today, I have great respect for the military and I love everything that it stands for.  The U.S. Navy has made my life better.”

Applicant’s Remarks:  (Taken from the DD Form 293.)  I hope that I can soon have a better closure to an outstanding military career.  I pray that my military service record has served useful to you all in making your final decision.  My hope is that I can receive a General discharge and finally close a chapter of my life that I dearly miss.  Naval Council Board, I would like to take this time and opportunity to thank you in advance for your thoughts and consideration concerning this matter and my entire naval career. 

Documentation

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

Applicant’s DD Form 214
Navy Occupation Training and Award History Listing 
Evaluation Report & Counseling Record dtd June 15, 1996
Evaluation Report & Counseling Record dtd March 21, 1996
Evaluation Report & Counseling Record dtd June 30, 1995
Evaluation Report & Counseling Record dtd November 30, 1994
Evaluation Report & Counseling Record dtd February 16, 1994
Evaluation Report & Counseling Record dtd June 15, 1993
Enlisted Performance Record (3 pgs)
Navy Achievement Medal Certificate dtd February 25, 1996
Meritorious Unit Commendation Letter dtd May 2, 1995
Letter of Commendation dtd October 23, 1996
Meritorious Unit Commendation Letter, undated
Letter of Appreciation dtd February 2, 1993
NAVPERS 1070/64 
Awards Listing
Letter from Applicant dtd November 8, 2005 (2 pgs)
Bachelor of Business Administration Degree from University of Management & Technology dtd June 20, 2005
Transcript from University of Management & Technology dtd June 28, 2005
Associate of Applied Science Degree from ECPI College of Technology dtd October 2003
Transcript from ECPI College of Technology dtd December 8, 2003 (2 pgs)
Professional Performance Award from ECPI College of Technology dtd August 20, 2003
Dean’s List Awards (2)
Phi Theta Kappa Society Induction Certificate dtd October 21, 2003
Letter of Recommendation from R_ A. R_, Executive Director of Phi Theta Kappa International Honor Society dtd September 9, 2003
Certificate of Completion (Virginia mandated 60 hours Principles of Real Estate course) dtd November 2, 2005 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19890713 – 19890717		COG
	Active:   USN 			19890718 – 19930715		HON

Period of Service Under Review:

Date of Enlistment:  19930716		Date of Discharge:  19981202

Length of Service (years, months, days):

	Active:    05  04  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			90 days

Age at Entry:  22

Years Contracted:  2 (12 month extension)

Education Level:  12				AFQT:  36

Highest Rate:  YN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4) 		Behavior:  4.0 (4) 		OTA:  4.0 (4.0 scale) 
		3.67 (3)			     5.00 (3)		          4.15 (5.0 scale)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon (2nd AWD) Southwest Asia Service Medal (w/ Bronze Star), Kuwait Liberation Medal, Navy Unit Commendation, Navy Achievement Medal, Meritorious Unit Commendation.

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

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events: 

930716:	Reenlisted this date for a term of 2 years.

960715:	Applicant extended beyond EAOS on legal hold.  [Extracted form Defense Counsel letter.]

961214:	Charges against Applicant referred to Special Court-Martial this date.  The charges are later withdrawn and dismissed.

970113:	Charges preferred against Applicant for violations of UCMJ Articles 120 and 125, this date.

970321:	Applicant signed a pre-trial agreement, this date.  Applicant agreed to plead guilty to all of the charges and specifications against him.

970430:	Special Court Martial [trial dates 970411, 970430]
	Charge I:  violation of the UCMJ, Article 120.
	Specification:  In that YN2 M_ D. E_ (Applicant), U.S. Navy, USS ENTERPRISE, on active duty, did, in or around the greater Norfolk, Virginia, area on diverse occasions on or about May 1995 through April 1996, commit the offense of carnal knowledge with C_ R. T_, a child under the age of 16, not his wife.
Plea:  Guilty.  Findings:  Guilty.
	Charge II:  violation of UMCJ, Article 125.
	Specification:  In that YN2 M_ D. E_ (Applicant), U.S. Navy, USS ENTERPRISE, on active duty, did, in or around the greater Norfolk, Virginia, area on diverse occasions on or about May 1995 through September 1995, commit sodomy with C_ R. T_, a child under the age of 16 years.  Plea:  Guilty.  Findings:  Guilty.
	Sentence:  Confinement for 110 days, forfeiture of $600.00 pay per month for 4 months, reduction to E-1, Bad Conduct discharge.
	CA 970829:  The sentence as adjudicated is approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed.
	
970430:	Joined Naval Brig Norfolk, VA for confinement.

970626:	Applicant’s request to the Convening Authority for clemency.  

970730:	From confinement, restored to full duty. 

980714:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

981113:	Appellate review complete, this date.

981202:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19981202 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C)

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 84 months of total service.  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.  Furthermore, 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 was convicted, in accordance with his pleas, at special court-martial for violating UCMJ Article 120, carnal knowledge and Article 125, sodomy.  Specifically, the Applicant admitted to an ongoing relationship of an inappropriate nature that included sexual intercourse and sodomy with a child under the age of 16 years.  The NDRB also noted that, despite his guilty pleas, the Applicant’s issues attempt to minimize his responsibility for his misconduct and shift blame for his unlawful actions to that of his victim.  The Applicant’s conduct 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.  By unanimous vote, the NDRB concluded that the Applicant’s discharge awarded to him at special court-martial properly characterized his service.  Relief denied.

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 could 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 Board received and considered all of the Applicant’s submissions, including his college transcripts, associates’ and bachelors’ degrees, academic awards, and real estate training.  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.  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 14, effective 
03 Oct 96 until 14 Dec 98, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

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 120, carnal knowledge, or Article 125, sodomy.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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