Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00653

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

ex-RMSN, USN
Docket No. ND01-00653

Applicant’s Request

The application for discharge review, received 010410, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The discharge was inequitable because the applicant was before a navy mast.  Even though the mast was in favor of the applicant.  The discharge board expressed that due to the mast this was the only discharge that could be given.

2.  (Equity Issue)  This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	950922 - 951204	COG

Period of Service Under Review:

Date of Enlistment:  951205		Date of Discharge:  990721

Length of Service (years, months, days):

	Active:    03  07  21
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NRSSR, Pistol Sharpshooter Ribbon 

Days of Unauthorized Absence:  None 

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

Undated:	NJP for violation of UCMJ, Article 134: Illegally obtaining services, for use of the ship's phone lines in making just over one hundred dollars worth of long distance phone calls to sex lines and friends.
	Award:  Restriction and extra duty for 7 days.  [Extracted from CO's message dtd 990622).

990622:	Commanding Officer, USS DEFENDER (MCM-2), MAST APPPEAL: The day prior to communicating his threat RMSN L__ had been awarded Commanding Officer's non-judicial punishment for violation of article 134: Illegally obtaining services; for use of the ship's phone lines in making just over one hundred dollars worth of long distance phone calls to sex lines and friends.  He was awarded 7 days restriction, 7 days extra duty, and fined in the amount of the phone charges attributed to him. In addition, I revoked his security clearance due to loss of confidence in his trustworthiness.  Though I certainly expected him to be upset, I did not anticipate that he would cross such a significant threshold in his reaction.  RMSN L_____ conveyed his intentions to kill the Commanding Officer with enough conviction to alarm his chain of command.  He repeated his intentions with significant and detailed enough vision later in the day to cause the psychiatrist evaluating his medical condition to warn me to avoid RMSN L_____.  I find his actions to be absolutely prejudicial to good order and discipline and explicitly in violation of the standards established by the UCMJ article 134 (Communication of a Threat).

990622:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Extracted from case file].

960622:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board [Extracted from case file].

990702:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990708:	Commanding Officer, USS DEFENDER (MCM-2) recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990719:	Commander, Mine Warfare Command authorized the applicant's discharge general under 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 990721 general under honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (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).

The NDRB found no inequity in the applicant’s discharge.  The Board found the applicant was properly processed for separation following his NJP and communication of a death threat to his commanding officer.  The NDRB noted the Administrative Board and commanding officer recommended the applicant be discharged with an other than honorable discharge.  The GCMCA directed the applicant’s discharge with a general under honorable conditions.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  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.  

C.  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.

D.  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:  A6730/A9455/A9223