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Docket No. ND04-01154

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

ex-AEAR, USN
Docket No. ND04-01154

Applicant’s Request

The application for discharge review was received on 20040709.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041222.  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:

1.  “MY DISCHARGE WAS IMPROPER BECAUSE IT WAS BASED ON ONE INCIDENT.  I REACTED TO THE POOR WAY I WAS BEING TREATED.
I WAS NEVER GIVEN THE CHANCE OR CHOICE TO CLOMPLETE MY ENLISTMENT AS I WANTED TO.
I WAS AND EXCEMPLORY SAILOR UP TO INCIDENT WICH LEAD TO MY DISHCARGE.

I HAVE RECENTLY APLYED FOR TWO LAW INFORMENT JOBS, AND MY DISCHARGE HAPPENS TO BE AND ISSUE.

I AM RESPECTFULLY REQUESTING A CHAGE OF DISCHARGE TO HONORABLE.

THANK YOU”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980124 - 980218	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980219			Date of Discharge:  000327

Length of Service (years, months, days):

	Active:    02  01  09
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  80

Highest Rate:  AEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)			Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  42

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:

991104:	NJP for violation of UCMJ, Article 107 (3 specs): (1) False official statement to NCIS Agent on 991004, concerning pictures taken of a sexual assault on an Airman, (2) False official statement to Chief on 991004, concerning the destruction of pictures taken of a sexual assault on an Airman, (3) False official statement to Lt on 991027, concerning statements made to Chief about pictures taken of a sexual assault on an Airman.
	Award: Forfeiture of $537 per month for 2 months, restriction for 60 days, reduction to E-2.  Forfeiture for 1 month and restriction for 15 days suspended for 6 months.  No indication of appeal in the record.

991107:	Retention Warning:  Advised of deficiency (False official statements), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991110:	Applicant to unauthorized absence 0630, 991110.

991112:	Applicant missed movement.

991222:	Applicant from unauthorized absence 2100, 991222 (42 days/surrendered).

000126:	Vacate suspended forfeiture awarded at CO’s NJP dated 991104 due to continued misconduct.

000210:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 991110 to 991222.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction on 991110.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $563.00, confinement for 14 days, restriction for 7 days, reduction to E-1.
	CA action 000222:  Sentence approved and ordered executed.

000301:	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 misconduct due to a pattern of misconduct.

000301:	Applicant advised of his 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.

000303:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

000313:	Commander, Navy Region, Southwest 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 20000327 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).

Issue 1.  The Applicant states his discharge was based on one isolated incident and that he was an exemplary sailor “up to the incident” which lead to his discharge.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for three specifications of a Violation of Article 107 of the UCMJ, a serious offense.  The Applicant was also convicted at summary court-martial for a period of 42 days in unauthorized absence, another serious offense, and breaking restriction.  The Applicant also committed another serious offense when he missed ship’s movement.  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.

The Applicant states, “I was never given the chance or choice to complete my enlistment.”  The Board discovered no improprieties or inequities in the Applicant’s Administrative Separation proceedings.  The Applicant was given proper due process, the Applicant waived his right to an Administrative Board and declined to submit a statement.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied. 

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.  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 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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement, if adjudged at a Special or General Court Martial

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 "http://Boards.law.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:

		Secretary of the Navy Council of Review 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.