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

ex-SMSN, USN
Docket No. ND00-00184

Applicant’s Request

The application for discharge review, received 991118, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested 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 000803.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  As a result of my Summary Court Martial the whole case was frauded.  I'm giving a account for my testimony item were crossed out without my authorization and added by one of the ships investigating officers.  This whole case was reviewed by the jagg counsel and the ships oic officer.  As a result of this infraction I was terminated from service.  In the ltjg officers testimony she verifies that I asked for the papers concerning the charges the reasons it was not obtainable was because, I was going to show the counsel's she refused me the evidenced that she tampered with.

Documentation

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

Statement from SM2 S___
Copies of DD Form 214 (3)
Copy of Voluntary Statement from applicant
Statement from LTJG S___ O___ concenring SM3 Q____
Letter from applicant to Mr S____
Copies of Letter of Commendation (4)
Evaluation Report & Counseling Record (9)
Statement from applicant
Copy of Voluntary Statement from K_____ V____
Copy of Record of Trial by Summary Court-Martial
Copy of Good Conduct Award
Copies from court testimony (7pgs)
Copy of Inquiry from Congressman W_____ M. T_____
Letter from Congressman W_____ M. T_____ 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	941018 - 941122	COG

Period of Service Under Review:

Date of Enlistment:  941123		Date of Discharge:  990319

Length of Service (years, months, days):

	Active:    04  03  27
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (5 months extension)

Education Level:  12			AFQT:  31

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (5)	Behavior:  2.00 (5)		OTA:  2.53

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (3), NAVY"E"RIBBON, GCA 

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:

950904:	NJP for violation of UCMJ, Article 86: UA , violation of UCMJ Article 92: (2 Specifications), Failure to obey other lawful order.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

981124:	Summary Court-Martial: Charge I: violation of UCMJ, Article 91: Disrespectful in language towards a superior petty officer; Charge II: violation of UCMJ Article 92: Disobeying lawful order to participate in a tactical exercise by SM2 S_____, Charge III: violation of UCMJ Article 107: Made false official statement to LTJG O______.
	Sentenced to forfeiture of $817.00 per month for 1 month, restriction for 45 days, reduction to E-3.
	CA (981130) Approved and ordered executed.

990111:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

990111:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

990203:	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 General under Honorable conditions.

990304:	Commanding Officer, U.S.Naval Forces Marianas Support Activitiy authorized discharge General under Honorable conditions by reason of misconduct due to Commission of a serious offense.

990401:	Commanding officer concurred with the boards recommendation to discharge applicant General under Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by a summary court-martial conviction on 981123, also by reason of misconduct due to Commission of a serious offense as evidenced by his non-judicial punishment held on 950904 for violation of the UCMJ, Article 92, with two specifications.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990319 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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant states the summary Court Martial was fraud.  Relevant and material facts stated in a court martial specification are presumed, by the NDRB, as established facts.  The discharge, if adjudged by court martial, tried under the UCMJ, may change only for the purpose of clemency.  The documents submitted were primarily service, related documents, plus a statement from the applicant.  The NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general).  Those factors include but are not limited to the following:  Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate).  The applicant did not provide any documentation to demonstrate good character and conduct.  He is encouraged to continue to establish a reputation of good character and document his accomplishments.  Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements.

The applicant remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge.  Legal representation at the hearing is advisable.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, 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 91, disrespect towards a superior Petty Officer; Article 92, disobeying a lawful order; and Article 107, false official statement, 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 "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