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

 ex-SN, USN
Docket No. ND03-00480

Applicant’s Request

The application for discharge review was received on 20030203.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229.  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 shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue 1: My discharge was inequitable because of improper information as to my rights to legal counsel particulars for this issue is stated on attached letter titled Issue 1, Page 1

Issue 1:

My discharge was inequitable because I was not given the proper information as to my rights to counsel. I was not told that I had the right to seek counsel. I was advised by the Executive Officer, who was not a Legal Officer, that I was not entitled to legal counsel or advice for my mistake and to just waive my rights. The Executive Officer also advised me that if I pursued legal counsel he would make sure that I received a Dishonorable Discharge, so it would be in my best interest to waive my rights and to accept the Other Than Honorable Discharge that I was given.
Originally, I was to be transferred to the USS Peleliu for 45 days restriction and then be sent home. But, in order to save the Executive Officer his time and the ship money on sending me home from sea, I was discharged within 48 hours of the incident and before the USS Comstock LSD-45 deployed for the Persian Gulf. I went to Captain’s Mast on Friday August 10, 2001 and was told to leave the ship on Saturday August 11, 2001. I did not have enough time to even consider any other options in regards to my discharge since the USS Comstock deployed on Monday August 13, 2001.
After serving in the U.S. Navy for three years and being frocked to the rank of E-5 as a Gunner’s Mate Second Class I was discharged with an Other Than Honorable because of one mistake. I feel that the discharge I receive was unjust because I had been a good dedicated sailor during my military career. I had voluntarily extended my active duty time twice. Once so the ship I was stationed on the USS Comstock LSD-45 could find a replacement for me when my contract was up and again when no replacement could be found because the ship was deploying to the Persian Gulf I did this so that my ship would not have to deploy without a qualified Ammunition Technician, which I was the only one on the vessel who had been to school and the only qualified person for the position.
I had asked for and been given permission to attend many schools to advance my knowledge to better perform my job as an Ammunition Administrator. I did this not only to benefit myself but also to help my shipmates so that I could perform my job to the best of my ability and in any capacity that was needed. During this time I also trained over 300 of my shipmates in security weapons and anti-terrorism, which was not a daily item until I made it an issue with my command, I also worked 6 days a week for 6 months to clear up the Comstock’s ammunitions problems that had existed for over 3 years. I did this on my own time and with my personal cell phone since a phone was not available to me when I was in need of it.
I was sent home without orders on August 11,2001 just hours after the August 8, 2001 incident. Even though I was sent home and the ship had deployed and I had not received my final discharge I was still in contact and helping my fellow shipmates out by e-mail on how to run the Gunner’s Mate Ammunition Department.
When the disaster of September 11, 2001 happened I c-mailed the PN1 of the USS Comstock to find out if I needed to report anywhere and what I needed to do since I had not been officially discharged from the U.S. Navy and I was told to sit tight even though I was willing and able to do anything or go anywhere to help my country and comrades. To this day I still help my former shipmates if I can and I am still willing to help in any capacity.

Issue 2: DD Form 214 Block 11 Primary Speciality.  Particulars for this issue is stated on attached letter titled Issue 2, Page 2

Issue 2:

As to my DD Form 214 block 11 I believe to be in error as to my Primary Specialty while in the Navy. I believe it should list my Gunner’s Mate specialty, the years and months I held this title since I was a Gunner’s Mate over half my military career in the Navy. This correction should be made to my DD Form 214.

Issue 3: DD Form 214 Block 12d.  Prior active service omission.  Particulars for this issue is stated on attached letter titled issue 3, page 2.

Issue 3:

As to block 12 d. on DD Form 214 my Prior Active Service was completely omitted. I did have prior active service, which started the day I enlisted in the U.S. Navy. I enlisted on May 14, 1998 in the Delayed Entry Program and I reported to boot camp in Great Lakes, Illinois on June 1, 1998, which would give me 18 days in the Delayed Entry Program. This correction should be made to my DD Form 214.”

Documentation

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

Letter from Ensign, undated
Letter from GM1(SW/CC0, undated
Letter address as To Whom It May Concern, undated and unsigned
Applicant’s DD Form 214(Member 1 and 4)
Applicant’s DD Form 215 (2)
Sixty pages from Applicant’s service record
Letter to Applicant from Board for Correction of Naval Records, dated November 29, 2002
DD Form 149 with attachments (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980514		Date of Discharge:  011025

Length of Service (years, months, days):

	Active:    03  04  25
	Inactive:  00  00  17

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  41

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  4.00 (4)	Behavior:  3.75 (4)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Letter of Commendation, BER (2)

Days of Unauthorized Absence:  None

*Obtained from supporting documents furnished by the Applicant.

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

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

Chronological Listing of Significant Service Events:

980601:	Commenced 36 months of active duty under the Seaman Apprenticeship Program.

990512	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.  No further information found in service record.

990513	Retention Warning:  Advised of deficiency (Failure to obey lawful order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010601:	Extended active duty for 8 months.

010809:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful regulation on 1600, 010808, to wit: SECNAVINST 1610.2 Department of the Navy policy on hazing, by handcuffing Gunners Mate Third Class N_’s hands behind her back, tying her feet with belt and striking her repeatedly with a yellow strap and a black three ring binder, violation of UCMJ, Article 128: Assault consummated by battery on 1600, 010808.
	Award: Forfeiture of $653 per month for 2 months, restriction and extra duty for 45 days, reduction to SN, removal of designation.  No indication of appeal in the record.

010810:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010810:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010817:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

011002:	COMPHIBGRU THREE 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 20011025 under other than 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).

Issue 1.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of a discharge if such is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

The Board disagrees with the Applicant's contention that he is entitled to an upgrade based on his record of service.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two non-judicial punishments for violation of the UCMJ for failure to obey a lawful order or regulation on two occasions (one for violating the Navy’s hazing policy) and for an assault consummated by battery.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issues 2 and 3.  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate to accurately reflect the Applicant’s Total Prior Inactive Service, which should read: “00 00 17” vice “00 00 00,” and to correct the Applicant’s Primary Specialty. 

The following is provided for the edification of the Applicant.  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, however, 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 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 additional documentation to support any claims of post-service accomplishments 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 "afls14.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