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NAVY | DRB | 2001_Navy | ND01-00719
Original file (ND01-00719.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND01-00719

Applicant’s Request
The application for discharge review, received 010430, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital region. The applicant listed the American Legion as the representative on the DD Form 293. On 011010, the day of the personal appearance hearing, the American Legion representative withdrew from this case, after interviewing the applicant.

Decision


A personal appearance discharge review hearing was conducted in Washington, D.C. on 011010. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned that although the discharge was determined to have been proper and equitable at the time of issuance, an inequity now exists based on the conditions listed in SECNAVINST 5420.174, chapter 2, paragraph 2.24 and chapter 9, paragraph 9.3. The Board’s vote was 4 to 1 that the character of the discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In October 1990 I was released administratively from the U.S. Navy. I went to court martial (special). I was convicted. My ex-wife testified against me in re: of domestic abuse. She attempted to tell her attorney along with the investigating officer that she was lying about the occurrences. She made a statement prior to the trial. They refused to swear it in due to them not having a case. I am submitting new evidence to show that she lied but also to show that I was intentional discriminated against. She attempted to tell them the truth but they refused. The letter that I am submitting was to my prior attorney Lt. K_ stating that she lied. They knew she lied and refused to dropped the case. I believed that I was discriminated against because of being of a different race I was prosecuted by a husband and wife team of government agents T_ M_ and her husband (both are agents or were at the time) There was absolutely no evidence of abuse prior to the trial. There were no bruises. I was accused of strangulation, punching, kicking, hitting her (wife) in the back of the head. X-rays showed everything was normal. She lied and the U.S. Government supported a lie.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Two letters to Senator dated March 7, 2001 from applicant
Note
Copy of voluntary statement from applicant's ex-wife
Letter to applicant from ex-wife dated April 16, 1992
Letter from applicant's ex-wife dated May 24, 1991
Copy of U.S. Naval Investigative Service dated July 6, 1990
Copy of criminal inadmissibility to Canada
Letter dated July 27, 1995
Copy of recommendation dated September 24, 1996
Copy of recommendation dated October 16, 1996
Letter to Congressman dated February 1, 1996
Copy of DD Form 214 (unreadable)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        820513 - 861124  HON
         Inactive: USNR (DEP)     820123 - 820512  COG

 Period of Service Under Review :
Date of Enlistment: 861125               Date of Discharge: 901023

 Length of Service (years, months, days):

         Active: 03 10 29
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.63 (6)    Behavior: 3.57 (6)                OTA : 3.63

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, MUC, OSR, GCM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

861125:  Applicant reenlisted for 4 years on USS BARBEY (FF-1088).

 900607:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 128 (3 specifications):
         Specification 1: Assault his wife by hitting her in the face and on her head, by grabbing her neck and choking her, by kicking her and by hitting her head into the wall causing her to become unconscious with a means likely to produce death and grievous bodily harm on 22Dec89
         Specification 2: Unlawfully strike wife in the face with his open hand on May90.
         Specification 3: Assault his wife by grabbing her across her neck and right shoulder and scratching he with his hands and pushing her and holding her against the wall with his hands on 25May90.
         Charge II: violation of the UCMJ, Article 134 (2 specifications):
         Specification 1: Wrongfully endeavor to impede an investigation in the case of U.S. vs. (applicant) by threatening and attempting to intimidate and NIS agent into not interviewing his wife, the victim in the case been investigated on 8Jan90.
         Specification 2: Wrongfully communicate a to his wife a threat to injure her by saying, You give me no other choice but to give you what you deserve for going and telling those white people about our problems.
         Findings: to Charge I and II and specifications there under, guilty.
         Sentence: HL for 2 months, restriction for 2 months, reduction to MMFN.
         CA 900716: Sentence approved and ordered executed.
         SA: see SSPCMO.

900724:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
900727:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
900810:  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.

900829:  Alcohol dependency medical evaluation: A: 1. Not alcohol dependent at this time. 2. Potential alcoholic if drinking continues. P: 1: Individual counseling done at this time of the interview. 2. CAAC Level II treatment highly recommended.
900906:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. Commanding officer’s comments (verbatim): Enclosures (1) through (5) are provided for further information. MMFN (applicant) is unsuitable for further military service due to commission of a serious offense as evidenced by enclosures (6) and (7). MMFN (applicant) is not alcohol dependent, enclosure (8). MMFN (applicant) was convicted by a jury of his peers for repeatedly assaulting his wife. In addition, he tired to manipulate the justice system by attempting to intimidate a law enforcement official investigating his case. He cannot be trusted or relied upon, and has proven to be a significant administrative burden to this command. I therefore most strongly recommend that MMFN (applicant) be immediately discharged with an Other than Honorable discharge.

9010??:  Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

901012:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved separation under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

901017:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

 910917:  NDRB documentary record review Docket Number ND91-01071 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901023 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 although the discharge was determined to have been proper and equitable at the time of issuance, an inequity now exists based on the conditions listed in SECNAVINST 5420.174, chapter 2, paragraph 2.24 (D and E).

Although the applicant did not submit an issue requesting clemency based on his post-service accomplishments, after thorough review of the applicant’s service records, supporting documents, facts and circumstances unique to this case, the Board determined the applicant’s post-service conduct was significant enough to warrant clemency, as outlined in SECNAVINST 5420.17 Chapter 2, paragraph 2.24. The applicant has been employed full time since his discharge, had no involvement with civil authorities, continued his adult education and earned an Associates Degree from Olympic College in Bremerton, Washington, in June of 2000. He’s working on his Bachelors degree in Counseling at Old Dominion University. These accomplishments, however, are secondary to those the Board considered worthy of clemency. Since 1994, the applicant has volunteered with “People Organized Working (for) Ethnic Reality [P.O.W.E.R.], a non-profit organization established to help youth-at-risk and troubled teens, in addition to being a counselor on alcohol and drug abuse. He volunteers with “Safe Streets”, another non-profit organization operated by the Bremerton Police department. The applicant started as a volunteer at the Kitsap Mental Health Services, Community Action Program, which became a paid position because of his observed talents and dedication to help youth with behavioral problems. The applicant continues to help youth at risk in Kitsap County and is pursuing a profession in counseling, which will allow him to continue to assist troubled youth and adults. The Board determined the applicant has established himself as a productive member of his community and is deserving of clemency in the form of partial relief. His military misconduct, however, is by no means mitigated by his post-service accomplishments and prevents the Board from granted full relief. The applicant’s discharge shall be upgraded to under Honorable conditions (General). The reason for discharge shall remain the same.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128 (Assault consummated by battery), Article 134 (Communicating a threat), if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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      


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