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

 
 ex-MMFN, USN
Docket No. ND03-00857

Applicant’s Request

The application for discharge review was received on 20030423.  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 did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040406.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was three to two that the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated submitted during the personal appearance hearing:

1.  “Equity

2.  Propriety”

Documentation

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

Applicant’s DD Form 214
Character reference, dated March 7, 2003
Character reference, dated March 7, 2003
Applicant’s DD Form 215, dated April 7, 1993
Applicant’s DD Form 215, dated February 25, 1993
Applicant’s DD Form 215, dated February 16, 1993
One hundred and forty-four pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	811029 - 820111	COG
	Active:   USN			820112 - 860109	HON
		   USN			860110 – 911219	HON

Period of Service Under Review:

Date of Enlistment:  911220		Date of Discharge:  930212

Length of Service (years, months, days):

	Active:    01  01  29
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  12			AFQT:  20

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (4)	Behavior:  2.65 (4)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, GCM (2), GWA (13), BER with 4 Stars, MUC, NRSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

921120:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 80, 134 (2 specs).
	Charges against Applicant were suspended.  Applicant demanded courts-martial in lieu of NJP.  Convening authority referred case to Administrative Board vice court.

921215:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921221:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921221:	Applicant waived right to an administrative discharge.

921223:	Commanding Officer recommended an honorable discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): Member waived rights to Administrative Board after consultation with attorney.  It should be noted that MM1 B_ (Applicant) never admitted to any of the allegations against him.  In enclosure (11), in my response to his statement to his evaluation, I stated that MM1 B_ (Applicant) waived his right to an Administrative Board and admitted misconduct.  I gave this statement to MM1 B_’s (Applicant’s) attorney to ensure that the language was correct.  He approved my statement.  Based on MM1 B_’s (Applicant’s) previous service to the Navy and 3.9 final performance average, recommend that he be separated from the Navy but with Honorable Discharge.

930105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930105:	Applicant advised of rights and having consulted 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.

930105:	Commanding Officer recommended an honorable discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): After consultation with his attorney, MM1 B_ (Applicant) agreed to waive his right to an Administrative Board in exchanged for my recommendation that he be separated from the Navy with an Honorable Discharge.  I agreed to those terms but in his presence and the presence of his attorney stated that my recommendation was not binding on BUPERS and that he was still subject to an other than honorable discharge, as stated in enclosure (2), if BUPERS should so determine.  MM1 B_’s (Applicant’s) attorney stated that Petty Officer B_ (Applicant) was aware that my recommendation was not binding and MM1 B_ agreed.  It should be noted that MM1 B_ (Applicant) never admitted to any of the allegations against him.  In enclosure (11), in my response to his statement to his evaluation, I stated that MM1 B_ (Applicant) waived his right to an Administrative Board and admitted misconduct.  I gave this statement to MM1 B_’s (Applicant’s) attorney to ensure that the language was correct.  He approved my statement.  Based on MM1 B_’s (Applicant’s) previous service to the Navy and 3.9 final performance average, I recommend that he be separated from the Navy with a Honorable Discharge.

930204:	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 19930212 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 and equitable (C and D).

Issues 1 and 2:  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.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the discharge if such a change is warranted.  The Applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1993.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  Relief denied.

The Applicant is advised he may apply to the Board of Correction of Naval Records (BCNR) to contest the validity of the preliminary inquiry concerning his alleged misconduct that resulted in his discharge.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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