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Docket No. ND99-00274

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

 ex-MS2, USN
Docket No. ND99-00274

Applicant’s Request

The application for discharge review, received 981214, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested 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 990810.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 – Commission of a Serious Offense, authority:  NAVMILPERSMAN, Article 3630605.

The NDRB did note an administrative error on the original DD Form 214.  Block 14, Remarks, add the following sentence:  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 87AUG11 UNTIL 95JAN02,” and Block 25, Separation Authority, should read:  “3630605” vice “3630600”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of DD Form 214.
Applicant’s Honorable Discharge certificate, dated 950102.
Applicant’s Good Conduct Award (Second award) certificate, dated 950811.
Applicant’s completion certificate from Fleet Training Center, San Diego, dated 960628.
Letter of Appreciation from the State of California, Deputy Secretary of State, dated 980427.
Coast Guard Meritorious Unit Commendation citation, dated 900613.
Letter of Appreciation from Commanding Officer, NAS Barbers Point, date unreadable.
Letter of Commendation from Commanding Officer, Naval Weapons Station, China Lake, dated 941114.
Applicant’s evaluation (back side) for the period 91APR16-91AUG10.
Letter of Completion from the Navy Environmental and Preventive Medicine Unit No. 5, dated 960201.
Applicant’s evaluation (back side) for the period 91AUG11-92MAR31.
Applicant’s evaluation (back side) for the period 92APR01-93MAR31.
Applicant’s evaluation (back side) for the period 94APR01-95JAN06.
Applicant’s evaluation (back side) for the period 93APR01-94MAR31.
Applicant’s evaluation for the period 95JAN07-96MAR15.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			870811 - 950102	HON
	Inactive: USNR (DEP)	861208 - 870810	COG

Period of Service Under Review:

Date of Enlistment:  950103		Date of Discharge:  971208

Length of Service (years, months, days):

	Active:    01  11  05
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  37

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.00 (3)		OTA:  2.93	5.0 EVAL

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), NDSM, CG MUC, GCM (2), SASM (2)

Days of Unauthorized Absence:  66 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a Serious Offense, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

951108:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery, to wit:  Unlawfully choked and pushed Mrs. R_ on the neck and body with his hands on 30Sep95.
	Awarded:  Forfeiture of $772.50 month pay for two months, restriction and extra duty for 45 days and reduction in rate to E-4.  Forfeiture suspended for 6 months.  No indication of appeal in record.

951115:	Retention Warning:  Advised of deficiency (Assault consummated by battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970523:	Applicant declared a deserter.  Unauthorized absence since 0630, 15May97.

970730:	Applicant returned from desertion 0909, 21Jul97 (66 days/surrendered).
	
970730:	Commanding Officer, USS DAVID R. RAY request MS2 (applicant) be retained at TPU San Diego, CA for administrative separation.  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970916:	Summary Courts Martial for violation of UCMJ, Article 86:
Charge I:  Violation of UCMJ, Article 86.
Specification:  On or about 0630, 15 May 97, did absent himself from his unit, USS DAVID R. RAY, until on or about 0909, 21 July 97.
Charge II:  Violation of UCMJ, Article 87.
Specification:  On or about 20 May 97, through design, did miss the movement of the USS DAVID R. RAY.
Findings:  Charge I and II, guilty.
Sentence:  Forfeiture of $819.90 per month for one month, confinement for 60 days and reduction in rank to MS3.
	CA 970929 approved sentence and orders executed.

971002:	Applicant notified of intended recommendation for discharge under Other Than Honorable Conditions by reason of Misconduct due to the Commission of a Serious Offense and Pattern of Misconduct.

971002:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

971105:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

971120:	Commanding Officer, Transient Personnel Unit, San Diego recommended discharge under Other Than Honorable Conditions by reason of Misconduct due to the Commission of a Serious Offense and Pattern of Misconduct. 

971126:	Commander, Naval Base San Diego 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 971208 under Other Than 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).

The applicant introduced no decisional issues for consideration by the Board.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 86, for unauthorized absence for a period in excess of 30 days and if adjudged at a Special or General Court Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0100/A9500/A9217