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Docket No. ND05-00375

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

 ex-ENFN, USN
Docket No. ND05-00375

Applicant’s Request

The application for discharge review was received on 20041227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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 inequitable because there were two of us hazing a shipmate and I was the only one discharged.  The other sailor involved went on to become En 1 (sw) A_.  The punishment was not dealt equally even though we committed the offense together on a shipmate.  I thought it was Uniform Code of Military Justice.  Unfortunately, there was nothing uniform about that punishment.  I admit that I was wrong and apologize for making a stupid mistake.  It was a young and dumb thing to do.  I grew up in the military with my parents each doing twenty plus years in the Navy (mother) and Air Force (father).  My goal was to be as successful as my parents with a military career.

The CO gave me a harsher punishment because there was prior animosity.  It all started when he first took over the command and did his familiarization meetings with each department.  One of his topics during the meeting was PRT.  He said he had been training for the run and expected everyone to be able to keep up.  I said no problem I’ve been the second fastest sailor on board for every PRT run.  He replied with a disgusted tone and said we will have to race during the next PRT run.  The second major factor was that I had been training for over a year to get a swap to the east coast by going through my command.  They were not willing to help me do that with there reasoning being I was watch section one for Ecert and one of two for AC&R techs.  I gave my mother a call who knew the En detailer and she convinced him to get me transferred to be stationed near a family member.  Once all the paper work was prepared by the detailer I began to walk It through my chain of command.  They were all very unhappy I was able to manage this possible transfer and everyone in my chain of command signed no on the request chit.  It really did not matter and they knew that the detailer had the final say.  From that moment on I was pegged as not being a team player.  Unfortunately, I got short timers attitude and made a stupid mistake.  The command used it as a chance to teach me they had more pull than I did.  The result was the end of my Navy career early.

The number one reason I need this upgrade is so that my application with Blackwater USA will be considered and I can continue to serve my country the best way I know how.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant, dated 31 Jan 2005 (4 pages)
Voluntary Statement of SR A_ R_, dated 22 Oct 1998
Letter of Deficiency, dated 20 Dec 1998 (3 pages)
Service Record Documents (8 pages)
Record of Counseling (9 pages)
Blackwater Academy Requirements
Letter from AGCM(AW) P_ A. S_, USN, dated 26 Jan 1999 (2 pages)
Letter from MSgt P_ F. S_, USAF, dated 16 Dec 1998 (2 pages)
Letter from LTCOL C_ M. I_, USMCR, dated 15 Dec 1998
Letter from LCDR K_ C. I_, dated 15 Dec 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941217 - 950829	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  950830			Date of Discharge:  990604

Length of Service (years, months, days):

	Active:    04  02  27
	Inactive:  None

Age at Entry:  17 (Parental Consent)	Years Contracted:  4 (24 months extension)

Education Level:  12				AFQT:  69

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)			Behavior:  2.50 (2)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM, NUC

Days of Unauthorized Absence:  None

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:

960815:	NJP for violation of UCMJ, Article 92 (2 specs):  Willfully disobeying a lawful order.
	Award:  Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (reduction suspended 6 months).  No indication of appeal in the record.

960815:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 92, Failure to Obey Order or Regulation, 2 specifications), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

981023:	NJP for violation of UCMJ, Article 91:  Willful disobedience of a chief petty officer; violation of UCMJ Article 92:  Failure to obey other lawful written order; violation of UCMJ Article 128:  Assault consummated by a battery.
	Award:  Forfeiture of $591.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

981028:	Commanding Officer, USS KINKAID (DD 965) notified Applicant of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

981028:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

981216:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct and that the misconduct warranted separation.  The Board recommended unanimously that characterization of service based on the misconduct due to a commission of a serious offense be under other than honorable conditions, but that the misconduct due to pattern of misconduct be characterized as general (under honorable conditions).  Overall, the Board recommended a characterization of service as under other than honorable conditions.

990203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and by reason of misconduct due to the commission of a serious offense.

990601:	COMNAVSURFPAC 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 19990604 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant’s service was marred by several orders violations, including a hazing incident in which he and another sailor battered a female shipmate in an initiation ritual.  This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 91, 92, and 128.  The Applicant implies that his discharge was inequitable because the other servicemember involved in the hazing incident was punished less harshly for the same misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation was appropriate, and that an under other than honorable conditions discharge was warranted.  As such, relief is denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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.  

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 92, failure to obey order or regulation, or Article 128, assault consummated by a battery, 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.