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Docket No. ND01-00316

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

 ex-RMSN, USNR
Docket No. ND01-00316

Applicant’s Request

The application for discharge review, received 010103, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review.  The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 011024.  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 three to two that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Whether the applicant was denied his Sixth Amendment right to adequate assistance of counsel at his administrative board.

2.  Whether the applicant was denied his right to due process under the Fifth Amendment to the Constitution of the United States.

3.  Whether the Naval Discharge Review Board Must Use Their Plenary Powers to Correct the Injustice in this Case.

Documentation

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

Brief from counsel (17 pages)
Copy of DD Form 214
Forty-four pages from applicant's service record
Copy of policy overview and drug and alcohol program levels Exhibit F
Letter from addiction therapist dated July 17, 1996
Brief for applicant
Letter to attorney from Board of Correction of Naval Records dated August 18, 2000 with enclosures (2 copies)
Letter from attorney dated November 22, 2000, December 6, 2000
Copy of previous personal appearance hearing of October 31, 1986 and a sanitized copy
Honor Roll Southern University at New Orleans fall 2000
Dean’s List Southern University at New Orleans spring 2000
Certificates of Participation in BSW Seminar for Majors (2)
Basic Academy Correctional Officer Training Program Certificate dated 20 Aug 1993
Domestic Violence Seminar Certificate of Attendance dated 11 May 2001
Comprehensive Public Training Program Certificate dated 15 Sept 1998
Character references (13)
Copy of pharmacy prescription dated 24 June 1993
Submitted 20 November 2001:
Character reference letters (17)
Certificate of Participation from the SUNO-School of Social Work
Copy of Diploma from the Christian Growth Study Plan
State Employee Performance Planning and Review Form
Southern University at New Orleans 1^st Semester Evaluation

PART II - SUMMARY OF SERVICE

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

	Active:   None
Inactive: None

Period of Service Under Review:

Date of Enlistment:  820824		Date of Discharge:  851119

Length of Service (years, months, days):

	Active:    02  10  09
	Inactive:  00  04  16

Age at Entry:  20			Years Contracted:  6

Education Level:  13			AFQT:  42

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.13 (3)	Behavior:  3.25 (4)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

830111:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

850202:	NIS Report of Investigation Control: 19Dec84-05NF-1237-7GNA/F.  No further information found.

850314:	NJP for violation of UCMJ, Article 86 (5 specs): (1) Unauthorized absence 0600, 4Mar85 to 1345, 5Mar85 (1 day/surrendered), (2) Absent from appointed place of duty, to wit: Compt security watch, (3) Absent from appointed place of duty, to wit: DC school muster, (4) Absent from appointed place of duty, to wit: Duty section muster on 4Mar85, (5) Absent from appointed place of duty, to wit: Substance Abuse Counsel; violation of UCMJ, Article 92: Derelict by failing to stand compt watch on 27Feb85; violation of UCMJ, Article 116: Breach of peace at the petty officer's club at Norfolk, VA 22Feb85; violation of UCMJ, Article 128: Assault civilian employees of the petty officer's club at Norfolk, VA on 22Feb85.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to MMSN.  No indication of appeal in the record.

850314:	Retention Warning from USS JOHN F. KENNEDY (CV 67):  Advised of deficiency (Misconduct as evidenced by your Captain's Mast on 14 March 1985 for three periods of unauthorized absence; three specifications of failure to go to your appointed place of duty; disobeying a lawful order, dereliction of duty; breach of the peace and assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850503:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence 0630-0930, 21Apr85 (3 hours), (2) Unauthorized absence 0700-0757, (57 minutes), (3) Unauthorized absence 0700-0812, 1May85 (1 hour and 12 minutes), violation of UCMJ Article 92: Failure to obey lawful general regulation by consuming alcohol while in duty status.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

850506:	USS JOHN F. KENNEDY CV-67 notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of serious offense, to wit: assault on 22Feb85 and fail to obey a lawful general regulation on 21Apr85.

850506:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

850529:	CNMPC request review outcome of investigation pertaining to NIS Report and advise if any military/civil disciplinary action or punishment/sentence awarded.  NIS report indicates administrative separation procedures may be appropriate.  Upon completion of review, request recommend course of action and rationale.

850607:	NIS investigation in case of applicant.  In reference to CNMPC message 29May85, applicant is presently being processed for other than honorable discharge for a pattern of misconduct and commission of a serious offense.  Applicant has requested administrative discharge board.  Case is pending interview and board hearing scheduling with defense counsel.  Upon completion of board case will be forwarded to CNMPC for final decision.

850619:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern – frequent involvement of a discreditable nature with civil or military authorities, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.  Recommended that the discharge be suspended for 12 months.

850706:	Civil Conviction:  General District Court, Norfolk, VA for violation of drinking in public and escape without force on 6Jul85.
Sentence: Fine $35.00 and courts costs of $20.00.

850709:	Applicant's counsel to CNMPC: The following statement of deficiencies is made:  "The respondent is well aware of the fact that you have the authority to deny the recommendation of the administrative board, i.e. a suspended OTH, in this case.  It is the, respondent's position that to do so here would be highly inappropriate and against the best interests of the respondent and his command.

"As can be seen from the testimony of the various witnesses called by the respondent (see reference (a))(administrative board report) RMSN (applicant) has a great deal of potential for future service in the U.S. Navy - potential that can be "tapped" if he is allowed the opportunity to exercise it.  By upholding the, administrative boards recommendation for a suspended OTH, not only would the respondent have that chance to prove himself, but his command will benefit as well, in that they will have adequate assurances that the respondent will conduct himself in a professional manner. Clearly this is an equitable solution, and one that should be applied in this case.
"For the above reasons, it is respectfully requested that findings and recommendations of this administrative board be approved."

850724	Commanding officer recommended applicant for Discharge Under Other Than Honorable Conditions/Misconduct (Pattern of Misconduct) and that execution of the discharge be suspended for 12 months.  Commanding Officer's (verbatim) comments: As evidenced by enclosures (1) (report of administrative discharge board) and (2) (administrative discharge proceedings with exhibits), the basis for administrative separation by reason of misconduct due to a pattern of misconduct has been established. It is the opinion of this command that RMSN (applicant) possesses potential for future useful naval service. Accordingly, it is recommended that RMSN (applicant) be separated from the U.S. Navy with a discharge under other than honorable conditions, but that the execution of the discharge be suspended for a period of twelve months.  Retention of RMSN (applicant) is considered to be in the best interest of this command and the U.S. Navy.

850808	CNMPC message: Action on reference A (USS JOHN F. KENNEDY 071527Z 9Jun86) held in abeyance.  Request reconvene Administrative Board to make findings based on specific reason member processed and forward corrected findings and recommendation signed by all members authenticated by President and member's counsel.

850815:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence 0630-0845, 1Aug85, (2 hours and 15 minutes), (2) Unauthorized absence 0615-0630, 2Aug85 (15 minutes), (3) Unauthorized absence 0800-0826, 2Aug85 (26 minutes), (4) Unauthorized absence 0615-0710, 5Aug85 (55 minutes).
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

850905:	Counseling: Advised of deficiency (performance, notified of corrective actions and assistance available.

850909:	USS JOHN F. KENNEDY (CV 67) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities and commission of a serious offense.

850909:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

850909:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern – frequent involvement of a discreditable nature with civil or military authorities, that the misconduct warranted separation, and recommended discharge under other than honorable conditions and recommended discharge be suspended.

850930	Letter from Counsel for the Respondent to CNMPC via CO:  The following statement of deficiencies is made:  Examination of reference (Report of administrative board), more specifically (applicant) has great deal of potential for future service in the U.S. Navy.  By upholding the suspended discharge not only would the respondent have the opportunity to demonstrate that he can do an excellent job, but his command will benefit as well in that they will have adequate assurances that the respondent will conduct himself in a professional manner.  Clearly this is an equitable solution - one that should be applied in this case.
"For the reasons stated above, it is respectfully requested that the findings and recommendations of this Administrative Board with regard to the issue of the suspension of the discharge be approved.

851001:	CNMPC advised CO applicant is not authorized any type of discharge until findings are corrected by the board and approved by NMPC 8322.

851008	CNMPC requested advise if member discharged 24 Aug 85 at EAOS, refers reference A (USS John F. Kennedy 0715277 Jun85).

851011	Applicant not discharged on 24Aug85.  Para 1.B. of reference B submitted in error.  Applicant's EAOS should read 11Jan86 vice 24Aug85.Applicant awarded suspended other than honorable discharge.

851018	Commanding Officer recommended applicant for Discharge Under Other Than Honorable Conditions/Misconduct (Pattern of Misconduct).  Comments:  As evidenced by enclosure (1) and (1), the basis for administrative separation by reason of misconduct due to a pattern of misconduct has been established.  I do not concur in the recommendation of the board that a discharge be suspended.  RMSM (applicant's) performance at this command has been completely unsatisfactory.  At the time of RMSN (applicant's) civilian offense and his nonjudicial punishment of 15 August an administrative discharge board was pending at NMPC.  That board has also recommended a suspended discharge. Yet RMSN (applicant) continued his misconduct.  By his documented unwillingness to conform, RMSN (applicant) exhibits a total lack of potential for future useful naval service.  Accordingly, it is recommended that RMSN (applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct and that the discharge be under other than honorable conditions.  Further counseling, leadership or disciplinary actions taken in this man's case would not be warranted.  Retention is not recommended, and would definitely not be in the best interest of the U.S. Navy."

851022:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

851030:	Message from USS JOHN F. KENNEDY to CNMPC: clarifying findings of admin discharge board.  Unable to reconvene board due to transfer of applicant to PCS, applicant was renotified of administrative discharge processing.

851102:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

861031:	NDRB personal appearance hearing in Dallas, Texas review Docket Number ND86-01860 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 851119 under other than honorable conditions for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (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).

In response to applicant’s issue 1, the Board found nothing in the record to demonstrate that there exists an error of fact, law, procedure, or that his Sixth Amendment rights, pertaining to adequate assistance of counsel at his administrative board, were prejudiced thereby.  The applicant did not provide any documentation to support this issue.  Relief is denied.

In response to applicant’s issue 2, The Board determined the applicant was properly notified of the Commanding Officer’s intention to administratively separate him from the Navy and was aware of the reason for separation.  The applicant was advised of his rights, consulted with counsel and elected to appear before an administrative separation board.  This process was completed twice (Administrative Separation Board conducted 19Jun85 and 9Sep85), before the applicant was actually separated from the Navy.  The records show the applicant was afforded all due process to which he was entitled.  Relief is denied.

In response to applicant’s issue 3, the NDRB considers the propriety and equity of each case that is reviewed.  The Board determined that the new documentation presented by the applicant, in addition to his service record and all previous documentation provided, though admirable, does not exculpate him from his pattern of misconduct while serving in the Navy.  The Board determined there was no injustice in the discharge procedures or the characterization assigned.  The discharge was proper and equitable.  Relief is denied.

This decision exhausts the applicant’s opportunity for review by the NDRB.  The applicant remains eligible to appeal for upgrade to the Board for Correction of Naval Records. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective 
17 Sep 84 until 15 Dec 85), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for dereliction of duty, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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:  A6750/A0137/A9453/A0103/