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Docket No. ND03-01158

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

ex-MSSA, USN
Docket No. ND03-01158

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to administrative or other term to indicate honorable service.  Also, please change reenlistment code to RE1 or RE2.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the American Legion as the 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 20040504.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “While in the military, I was accused of slapping a shipmate on the back of the neck.  I was also accused of attempting to intimidate the shipmate not to report this.  After being informed of my write-up and possible Captain’s Mast, I continued my day to day schedule.  After being relieved on my day off several weeks later, I was informed that my Captain’s Mast was supposed to be held on that day.  My Division Officer (LTJG) and I discussed the Captain’s Mast and why it was chosen for that day.  LTJG and I never had a good relationship; he felt insulted when I called him Lieutenant instead of Mr. and we never agreed on several issues.

I went into my berthing area to prepare for the Captain’s Mast by changing from civilian clothes to my dress white uniform.  When I arrived at the Executive Officer’s quarters, I was instructed by the Master At Arms to wait outside of the door.  When I was called into the room, I was informed that my Division Officer had informed the Executive Officer that I had threatened to harm him.  I was instructed not to make a statement.

I was handcuffed and taken to the brig at Miramar Naval Air Station.  While in the brig, I was appointed a lawyer (L.T. G_), who represented me during the trial.  During the trial, I did not speak.  The judge concluded that since there were no witnesses to corroborate either side, he would find me guilty.

The judge also stated that it appeared that this court-martial was an act of vengeance and the entire situation should never have been brought to a court-martial; instead it should have been handled at Captain’s Mast.  The judge also stated that his finding of guilt was not to remove mc from the Navy, but to remove me from that command.  The judge also stated that he felt if I went back under that command, I would be targeted for more negativity.

After going through this ordeal, I was given a hearing to determine my military fate.  I am not aware of what was documented, but several members of the review board stated that I did not appear to be excited about the Military and that to allow me to remain in the Military would be more like punishment.  Before my trial, I was offered several bargains if I plead guilty.  Although my lawyer encouraged me to do so, I felt strongly against pleading guilty to something that I did not do and denied the opportunity to plea bargain.

The Board also stated that I would receive a general under honorable conditions discharge that would upgrade automatically.  This discharge was December 1993; therefore, for the past ten (10) years, I have been under the impression that I was awarded an honorable discharge.  I was recently informed that the discharge did not upgrade automatically and that I must apply to upgrade the discharge.

Also, I request that the reason for separation be changed from misconduct to administrative or other term to indicate honorable service.  Also, please change reenlistment code to RE1 or RE2.”

Additional issues submitted by Applicant’s representative (American Legion):

“2.  (Equity Issue) This former member further requests that the Board include provisions 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:

Applicant’s DD Form 214 (2)
Criminal record check
Character/job reference, dated April 17, 2003
Character reference from Senior Pastor, dated July 15, 2003
Character reference from Administrative Assistant, Whitaker School, dated July 16, 2003
Character reference from Clinical Assistant, Family & Youth, Inc, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900224 - 900709	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900710		Date of Discharge:  931229

Length of Service (years, months, days):

	Active:    03  05  20	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.50 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, LA

Days of Unauthorized Absence:  95

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901220:	NJP for violation of UCMJ, Article 92: (1) Failed to obey a lawful order by sexually harassing a female service member on 1845, 900929, (2) Failed to obey a lawful order by sexual harassing another female service member on 1928, 901114, violation of UCMJ, Article 117: Wrongfully use provoking words on 1928, 901114, violation of UCMJ, Article 128: Unlawfully assaulted a female service member on 1845, 900829.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

901220:	Retention Warning:  Advised of deficiency (You were found guilty at CO’s NJP of Viol, UCMJ Art 92: Sexual harassment, Art 117: Provoking words, Art 128: Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930709:	Applicant to pretrial confinement.

931001:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 89:
	Specification: Disrespectful in behavior towards a superior commissioned officer on 930709.
	Charge II: violation of the UCMJ, Article 117 (2 specs):
	Specification 1: Wrongfully use provoking words towards FN on 930602.
	Specification 2: Wrongfully use provoking words to FN on 930602.
	Charge II: violation of the UCMJ, Article 128:
	Specification: Commit assault on 930602.
	Charge III: violation of the UCMJ, Article 134 (2 specs):
	Specification 1: Wrongfully communicate a threat to FN on 930610.
	Specification 2: Wrongfully communicate a threat to LT on 930709.
	Findings: to Charge I, and III and specifications thereunder, guilty.  Charge II and specifications thereunder, not guilty.
	Sentence: Confinement for 116 days, reduction to MSSA.
	CA 931104: Sentence approved and ordered executed.

931005:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Special Court-Martial conviction of 931001.

931005:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

931013:	Applicant from confinement and restored to full duty.

931015:	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 general (under honorable conditions).

931207:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

931223:	BUPERS directed 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 19931229 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).

Issue 1.  A characterization of service of under honorable conditions (general) 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 award of one nonjudicial punishment (NJP) and one special court-martial.  Each of the Applicant’s violations of the UCMJ are considered serious offenses.  The statements provided by the Applicant do not refute the charges that led to disciplinary action.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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

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.
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