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

 ex-GSMFN, USN
Docket No. ND00-00493

Applicant’s Request

The application for discharge review, received 991214, requested that the characterization of service on the discharge be changed to honorable, general/under honorable conditions or entry level separation or uncharacterized and the reason for the discharge be changed to economic reasons.  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 000918.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of County Clerk's Recording Page dated September 28,1994
Copy of DD Form 214 (2 copies)
Two pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN			900920 - 940910	RELAD
	Inactive: USNR (DEP)	900502 - 900919	COG
		   USNR (DEP)	960425 - 960708	COG

Period of Service Under Review:

Date of Enlistment:  960709		Date of Discharge:  980227

Length of Service (years, months, days):

	Active:    01  07  19
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  29

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  Unknown

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUC, SASM (2), NUC, KLM, CAR, SSDR (3), GCM

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 3630605.

Chronological Listing of Significant Service Events:

971208:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey order given by the executive officer, (2) Failure to obey regulation USS the Sullivans Instruction 5370.1, Fraternization, violation of UCMJ Article 128: Assault consummated by a battery by unlawfully striking OSSN.
	Award:  Forfeiture of $598.35 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

971215:	Retention Warning:  Advised of deficiency (Despite having been awarded punishment at CO's NJP for fraternization, assault and disobeying a direct order.  However, the following deficiencies in your conduct are identified: You are warned that your behavior has been completely unacceptable, constitutes a crime against the team, and would have led to a civilian arrest and jail time had you been caught out in town.  You violated command policy on fraternization, assaulted a shipmate with whom you had an inappropriate relationship and then lied about it at CO's mast.  I am particularly concerned about your future interactions with OSSA R_.  Let me make this absolutely clear; if you attempt to take any retribution against her, attempt to contact her (other than that which may be absolutely required in the course of normal military duties), attempt to contact her while on liberty, leave messages for her, or harass her in anyway, I will immediately begin processing you for administrative separation for commission of a serious offense.  I am willing to give you a second chance, Fireman (applicant), but I want you to understand how thin the ice is upon which you stand.  You have not gotten away with anything.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

971219:	Applicant violated the page 13 retention warning when applicant and OSSA R_ were seen by an officer and chief petty officer exiting a scuttle together which led from an unmanned trash compactor room.

980129:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980129:  	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.

980131:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  GSMFN (applicant) was given great leniency during his NJP in December due to support from his chain of command, my recognition of his professional abilities and his past contributions to the ship.  With his violation of the page 13 warning, GSMFN (applicant) left this command with no other alternate to processing him for administrative separation, and I know of no circumstances which would support a review favorable to his retention in the U.S. Navy. I recommend separation with a characterization of general.

980210:	BUPERS 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 980227 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).

The applicant introduced no decisional issues for consideration by the Board.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 an order 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