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

 
ex-BM2, USN
Docket No. ND03-00087

Applicant’s Request

The application for discharge review, received 20021015, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Wt Control/PRT failure.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant designated civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Issue #1. Propriety.  An error of law, procedure, and discretion occurred at the time former BM2(SW) M_ F. M_ (Applicant) was discharged (hereinafter he will be referred to as BM2 M_ (Applicant)).  BM2 M_ (Applicant) executed a conditional waiver of his fights to an administrative discharge board (he had more than six years active duty), waiving such rights on the condition that he received no less than an Honorable discharge.  Though Navy regulations only permit conditional waivers for General discharges not Honorable discharges, BM2 M_'s (Applicant) designated military lawyer did not know this and provided erroneous advice to BM2 M_ (Applicant).  The command failed to process this erroneous conditional waiver in accordance with Navy regulations.  The command was required to return the conditional waiver with an appropriate explanation to give him another opportunity to decide whether he wanted to elect an administrative discharge board or waive that board knowing that he could receive a General discharge under honorable conditions.  Instead of returning the conditional waiver so he could make a new and informed choice, the command simply approved a General discharge under honorable conditions, without having the case heard by a board, even though BM2 M_ (Applicant) had only waived his right to a board on the condition that he receive an Honorable discharge.  This decision by the command denied BM2 M_ (Applicant) the opportunity to knowingly elect an administrative discharge board.  This violation of Navy regulations prejudiced BM2 M_ (Applicant) because there is substantial doubt that the discharge would have remained the same if he had been given the opportunity to present his case to an administrative discharge board as the command was only seeking an Honorable discharge.

2.  Issue #2.  Propriety.  An error of law and discretion occurred at the time BM2 M_ (Applicant) received a discharge based upon misconduct.  The misconduct relied upon by the command were two offenses that BM2 M_ (Applicant) was found guilty of at commanding officer's nonjudicial punishment.  BM2 M_ (Applicant)l was specifically processed and discharged for Misconduct-Commission of a Serious Offense.  Navy regulations required that for misconduct to be a serious offense it must be an offense that would warrant a punitive discharge under the Manual for Courts-Martial.  Neither of the offenses that BM2 M_ (Applicant) was found guilty of at Mast were offenses that if found guilty at a court-martial would have warranted a punitive discharge.  Additionally, none of the offenses he was found guilty of at Mast stated an offense under the Uniform Code of Military Justice, and it was therefore unlawful and an abuse of discretion to consider these acts as misconduct for purposes of administrative discharge.  The reason for discharge should therefore be changed to the other reason for which BM2 M_ (Applicant) was processed for discharge, weight control and/or physical readiness test failure.

3.  Issue #3.  Equity.  At the time of issuance, the discharge that BM2 M_ (Applicant) received was inconsistent with the standards of discipline in the Navy.
4.  Issue #4.  Equity.  A discharge upgrade is warranted based upon consideration of BM2 M_'s (Applicant) service record and other evidence presented to the Navy Discharge Review Board viewed in conjunction with both the factors permitted to be considered by the NDRB and the regulations under which BM2 M_ (Applicant) was discharged.

Documentation

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

Facts and Law Supporting Each Issue dtd Oct 10, 2002 (9 pages)
Copy of DD Form 214
Administrative Discharge processing documents (21 pages)
Declaration of Lt M_ N_ F_, JAGC, USNR, dtd May 2, 2002
MILPERSMAN Article 1910-226
Extract from enclosure (1) of SECNAVINST 5420.174C
Declaration of M_ F_ M_ (Applicant) dtd Aug 23, 2002
Declaration of BMCS(SW) G_ G_, USN dtd Sep 12, 2002
BM2 M_’s Evaluation Records and Counseling Records aboard USS FLETCHER
MILPERSMAN Article 1910-142
Extracts from Manual for Courts-Martial, Appendix 12 and Part IV
Headnotes from US v. Shavrnoch
Extract from US v. Adams
Extracts from BM2 M_’s Service record book
Declaration of Dr. L_ D. F_, Associate Dean, dtd May 16, 2002
Declaration of Professor S_ W. A_, Thomas Nelson Community College, dtd May 17, 2002
Letter of Appreciation from Coordinator of Student Affairs, dtd Feb 6, 2002
Letter of invitation from Dr. L_ D. F_, dtd Feb 20, 2002
Declaration of Mr. S_ L_, dtd Aug 11, 2002
Police Record Check, Norfolk, VA
Virginia DMV driver history record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19890719 - 19900708	COG
	Active:   USN 			19900709 - 19981106	HON

Period of Service Under Review:

Date of Enlistment:  19950606		Date of Discharge:  19981106

Length of Service (years, months, days):

	Active:    03  05  01
	Inactive:  None

Age at Entry:  23			Years Contracted:  5

Education Level:  12			AFQT:  84

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (4)	Behavior:  2.25 (4)		OTA:  2.96

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(3), SWASM(2), AFEM, GCA(2), ESWI

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970919:	NJP for violation of UCMJ, Article 92 (3 Specs):  
Specification 1:  On 11 Sep 97, disobeyed a lawful general regulation, by wrongfully asking another Sailor, if he “knew any slave songs.”
Specification 2:  Dismissed.
Specification 3:  On 16 Sep 97, failed to obey a lawful general regulation by wrongfully saying, “how would you like to f--- the new wetback?”
Violation of UCMJ, Article 117:  (3 Specs):
Specification 1:  On 11 May 97, wrongfully used provoking and reproachful words to wit:  “Do you know any slave songs?”
Specification 2:  Dismissed
Specification 3:  On 16 Sep 97, wrongfully used provoking and reproachful words, to wit”  “want to f--- the new wetback?”
	Award:  Restriction and extra duty for 30 days, reduction to E-3 (suspended for 4 months).  No indication of appeal in the record.

980106:	Retention Warning:  Advised of deficiency (accumulated 2nd Physical Readiness Program Failure in a 4-year period) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980828:	Applicant requested a conditional waiver of the Administrative Board proceedings, if an Honorable Discharge is granted.  Applicant further acknowledged understanding that if request is disapproved, the administrative separation processing will continue, and will have the right to elect an administrative board.

981023:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense and by reason of weight control and/or physical readiness test failure.

981023:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

981030:	CO, NAVSTA, Pearl Harbor, HI directed the Applicant's discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  “BM2(SW) M_ (Applicant) was transferred to this command for separation from USS FLECTCHER.  BM2(SW) M_ (Applicant) showed no potential to get within naval standards.  Further, his blatant disregard for racial awareness does not fit with naval EEO standards.  Accordingly, BM2(SW) M_ (Applicant) should be discharged from the naval service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981106 with a General (Under 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 and equitable (C, D, and E).

Issue 1.  The Applicant states his command failed to process his erroneous conditional waiver in accordance with Navy regulations.  This act denied him another opportunity to decide whether he wanted to elect an administrative discharge board or waive that board.

The Board determined this issue has no merit.  The Applicant’s Conditional Waiver Request was signed and dated 28 August 1998.  Subsequent to the Conditional Waiver Request the Applicant was issued an Administrative Separation Processing Notice, dated 21 October 1998, on which the Applicant waived his right to request an Administrative Separation Board.  Therefore the Applicant was not denied the opportunity to have his case reviewed by an Admin Board.  Neither was there a violation of Navy regulations.  Relief denied.

Issue 2.  The Applicant states that neither of the offenses he was found guilty of at mast were offenses that if found guilty at a court martial would have warranted a punitive discharge.

The Board determined this issue has no merit.  The Applicant was found guilty at NJP for violation of UCMJ Article 92 (failure to obey a lawful order or regulation), and Article 117 (provoking speech and gestures).  A punitive discharge (BCD) is authorized for violation of Article 92, if adjudged at a Special or General Court Martial.

Issue 3.  The Applicant states the discharge he received was inconsistent with the standards of discipline in the Navy.

The Board determined this issue has no merit.  It was legally appropriate for the Applicant’s commanding officer to separate the Applicant with a discharge characterization of General, under Honorable conditions for violation of UCMJ Article 92.  The Applicant was given proper due process and given the opportunity to elect or waive specific rights at his discretion.  The discharge was proper and equitable.  Relief denied.

Issue 4.  The Applicant states a discharge upgrade is warranted based upon consideration of his service record and other evidence presented to the NDRB.

The Board determined this issue has no merit.  Based on the marks contained in the Applicant’s service record, from the Applicant’s last enlistment, his performance marks were within standards but his behavior and overall trait average were below standards.  In reviewing all documents and records provided to the Board in reference to this case the Board determined there is insufficient justification to warrant an upgrade to this discharge.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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), Change 18, effective 
12 Dec 97 until 29 March 2000, 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.

E.  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 a lawful order), if adjudged at a Special or General Court Martial

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