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NAVY | DRB | 2003_Navy | ND03-01499
Original file (ND03-01499.rtf) Auto-classification: Denied


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

ex-BMSN, USNR
Docket No. ND03-01499

Applicant’s Request
The application for discharge review was received on 20030917. 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 was advised that his case would first receive a documentary review. The Applicant listed a Civilian Counsel as his representative on the DD Form 293. Subsequent to submitting the application, the Applicant obtained representation from the Veterans of Foreign Wars.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the Applicant’s service. The Board’s vote was four to one that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/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. “ All documentation submitted with this form.

Article 117 findings constituted minor disciplinary infractions in the eyes of SEC of the NAVY. (Under#s .1. 2. 3)
#4 includes “uncharged/uninvestigated misconduct’ in November 2001 timetable as basis for separation recommendations for general discharge “other than hnrable- labeling “such ” conduct “serious misconduct” according to MILPERSMAN.
#6, Convening authority failed to appoint military councel for BM2 S_ not meeting procedural requirement of “appointed military councel was not met.
#7, BM2 S_, was punished illegally by L/CDR S_ H_, S_’s Company Commander by not allowing S_ to drill May 2002.
#8, BM2 W_ S_ was harassed by officers including the XO, L/CDR G. A. B_ & the Command Reserve Center’s Master Chief R. J. M_ for electing to go through board proceeding and BM2 S_ was tol d Mr. C_ A. M_ was “not registered” to represent BM2 Stegall.
Through all these proceedings conducted by the Administration Board, Commander, Navy Reserve Center, NAS Ft Worth, Texas I, BM2 W_ S_, respectfully request that all deficiencies be acted upon by disapproving the “findings” of the Board. I request that all recommendations be overturned & new determinations of fact finding be made and Board Action change my discharge to an Honorable.”

Issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2. “Based on the argument that the applicant lawyer, Mr. C_ A. M_ presented on September 10, 2002, we contend that there is an impropriety issue with the applicant discharge. Therefore we rest this case based upon the evidence of record and request that every possible consideration be given to the applicant in resolving his request in his favor.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
         Letter from BCNR to Senator H_
         Two emails from Applicant’s counsel to Applicant
         Civilian counsel letter to CO
         Civilian counsel letter to Applicant
         Statement of legal services
         Letter from D_ M_
         MCPON visits El Paso Reserve Center summary
         YN1 M_ J. F_ calling card
         Memo dated January 20, 2001
         VFW newsletter extract
         1 st MARDIV Association membership (3 pp.)
         Letter from Applicant to senior editor, “VFW Magazine”
         Letter from Applicant printed in “VFW Magazine”
         Letter from Applicant concerning former members of 3d Batt., 41 st ID
         Letter from S_ M_
         Honorable Discharge certificate dated January 12, 1976 (2 pp.)
         Honorable Discharge certificate dated February 27, 1996
         BS degree from Texas Tech
         Private pilot license
         Driver’s license
         Social Security card
         29 pages from Applicant’s service record
         Letter in support of award for Mr. F. R_ (3 pp.)
         Letter from Applicant to G_ W_
         Letter to Applicant from M _ R_
         Letter from G_ W_
         Letter from Applicant printed in “WWII History”
         Letter from Applicant to editor
 “WWII History” magazine cover
Letter of deficiency from civilian counsel (2 pp.) (2 copies)
DD Form 149
POD, March 30, 2002 (3 pp.)
Four letters to Congressman S_
Three letters to Applicant from Congressman S_
Japanese instructor letter (4 pp.)
Two letters from B_ G_
Letter from W. D_ P_ (2 copies)
Statement from Applicant
Map of Tidewater, VA
Ten statements concerning racial slurs allegedly made by Applicant
“The Tacos” fighter photo
Email from Applicant
Letter from NCPB to Senator H_
Letter from Applicant dated July 28, 2002
Privacy act consent form
Letter from D_ D_
Letter from R_ A. D_
Letter from R_
Letter from J_ S_
Jaycee of the Month award
Lions Club membership
Three newspaper articles
Company photo
Letter of Appreciation from J_ J. R_
Volunteer support letter from E_ L_
Character reference from E_ E. W_
Employment background summary
Character reference from J_ B. M_
Letter from Applicant on holocaust
Letter from Applicant to L_ and V_
Letter from Applicant to C_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (J)               700113 - 700119  COG
                  USMCR            731122 - 760112  HON
 USNR             910311 - 940708  HON
                   USANG            9407 - 951001    HON
         Active: USMC              700120 - 731121  HON
                 

Period of Service Under Review :
Date of Enlistment: 960228               Date of Discharge: 021021

 Length of Service (years, months, days):

         Active: 06 07 23
         Inactive: None

 Age at Entry: 44                          Years Contracted: 4 (3 year extension)

 Education Level: 16                        AFQT: 75

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.89 (9)    Behavior: 2.78 (9)                OTA: 2.81

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MOVSM, NRMSM (2d), AFRM,

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 :

020517:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020620:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to appear before an administrative discharge board.
020727:  Counseling: Advised of deficiency, notified of corrective actions and assistance available. [Extracted from CO’s letter]
020908:  An administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense by violation of UCMJ, Articles 117, 107, and 134, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

020910:  Applicant’s counsel submitted letter of deficiency concerning the administrative discharge board.
020922:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021021:  CNMPC 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 20021021 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 but not equitable (C and D).

 Issues 1 and 2. Based upon the details of the Applicant’s offenses and in consideration of the Applicant’s rank, record of service, and all documentation available for review, the Board found that the Applicant’s discharge did not warrant a characterization of service under other than honorable conditions. An honorable characterization of service is warranted when the Applicant’s conduct and performance render any other characterization inappropriate. Characterization of service under honorable conditions (general) is warranted when the Applicant’s service has been honest and faithful but significant negative aspects of the Applicant’s record outweigh positive aspects of his service. In accordance with the provisions of reference (D) below, the Applicant’s enlistment under review is equitably characterized as under honorable conditions (general). Partial relief is therefore granted

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), re-issued October 2002, effective 22 Aug 02 until Present, 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      


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