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

ex-BMSN, USN
Docket No. ND01-00524

Applicant’s Request

The application for discharge review, received 010315, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application for review, the applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  After a thorough review of the records, 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 3630600. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
 
1. I feel that my discharge was improper due to the fact that I was incarcerated and the hearing held in my absence did not allow me to plead my case.  I was held under civil law and was never furnished advisory counsel after being charged with a crime I viewed as self defense.  It should also be noted that I served five(5) faithfull years of active duty including participation in the persian gulf war with several awards and letters of appreciation.  One for aiding in the evacuation of service members and their families after the eruption of Mt. Pinatubo in the phillipines.
     
2. We ask that your review this case for fairness and equity and that you change the discharge as requested by the applicant.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	880323 - 880410	COG

Period of Service Under Review:

Date of Enlistment:  880411		Date of Discharge:  940719

Length of Service (years, months, days):

	Active:    05  04  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (18 months extension)

Education Level:  12			AFQT:  35

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (6)	Behavior:  3.70 (6)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR(wb*), NDSM, SASM(wb*) 

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 3630600.

Chronological Listing of Significant Service Events:

890105:	Retention Warning:  Advised of deficiency (Disciplinary infractions and pattern of misconduct.  The facts or incident precipitating this counseling: Commanding Officer's NJP on 890105 for your violation of the UCMJ, Article, 116 and 128), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890105:	NJP for violation of UCMJ, Article 116: Breach of the peace, violation of UCMJ Article 128: Assault on Japanese national both occurring at 0200, 881220.
	Award:  Forfeiture of $376.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-1.  No indication of appeal in the record.

900722:	Retention Warning:  Advised of deficiency (Various infraction of the UCMJ evidence by a non-judicial punishment on 900726), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
900730:	NJP for violation of UCMJ, Article 123: Forgery on 900719, violation of UCMJ Article 86: Failed to go to appointed place of duty on 900709.
	Award:  Correctional Custody Unit for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

901113:	Commanding officer vacated that portion of NJP on 900730 calling for reduction in rate to the next inferior pay grade due to member's continued misconduct.

901113:	NJP for violation of UCMJ, Article 128: (2 Specs), Assault consummated by battery on or about 900829, violation of UCMJ Article 92: Violation of lawful written order (COMNAVFORJAPANISNT 550.8E) on or about 900807, violation of UCMJ Article 134: Communicating a threat on or about 901008.
	Award:  Extra duty for 45 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

910105:	NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed, 2130 on 901224 (liberty risk muster).
	Award:  Forfeiture of $200.00 per month for 2 months (suspended for 6 months).  No indication of appeal in the record.

930418:	BM3 M____ and a co-conspirator drove to local lodge.  BM3 M____ exited the vehicle holding a shotgun behind his back and began approaching a group of lodge patrons.  The patrons dispersed and BM3 M___ pursued the group in the hallways of the lodge.  After turning a corner in the corridors.  BM3 M____ saw one of the patrons and took aim with the shotgun.  The victim did not notice his assailant until it was to late.  The shotgun blast struck the victim in the face, blinding him in one eye.  Subject member was subsequently arrested by West Covina Police for attempted murder.
       
930505:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930502 having been an unauthorized absentee since 0730, 930402 from NAVSTA Long Beach, CA.

930517:	Civil Conviction at Superior Court of California for violation of California Penal Code 203, mayhem and violation of California Penal Code 12022(A)(1), use of firearm in the commission of a felony.
	Plea: No contest to all charges.
	Sentence: 9 years imprisonment.
 
940204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his non-judicial punishment of 900730 and 901113 for violation of Art 92, disobeying a lawful order, Art 128, assault and Art 123, forgery and misconduct due to civil conviction as evidenced by his conviction on 930517 by Superior Court of California for violation California Penal Code (CPC) 203, Mayhem and CPC 12022(A)(1), use of firearm in the commission of a felony offense, and misconduct due to drug abuse as evidenced by his 
positive urinalysis examination of 930326 for cocaine.

Drug dependency evaluation not complete due to member's incarceration by civil authorities.
 
940204:  	Applicant advised of his rights and having elected 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.

940215:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due civil conviction and misconduct due to the commission of a serious offense and misconduct due to drug abuse.

940225:	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 940719, in absentia, 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issues 1 and 2, the Board found no reason to grant relief.  The applicant was administratively discharged, which permits a member’s discharge in absentia.  The applicant was unavailable at the time of his discharge due to incarceration for committing a felony.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 92, for violation of a lawful written 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 "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