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

ex-GMG3, USN 
Docket No. ND03-01077

Applicant’s Request

The application for discharge review was received on 20030605.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I would like the Board to consider the amount of years of exaplairy service prior to the incident leading to my discharge.  I would also like the Board to take into consideration that I was punished twice for the same crime.  I am sorry about my actions and feel that the punishment received from my court martial was fair and just.  But after serving my time in the Brig, the Commanding Officer of the transient Personnel Unit decided to discharge me instead of me being given new orders.  In essence convicting me twice or a second time for the same crime, violating my rights provided in the fifth amendment of the U.S. constitution.”

Documentation

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

Character Reference from R_D_ dated 28 Apr 03

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USNR		870919 - 910723	HON

Period of Service Under Review:

Date of Enlistment:  910724		Date of Discharge:  960613

Length of Service (years, months, days):

	Active:    04  11  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  6 

Education Level:  12			AFQT:  51

Highest Rate:  GMG2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)	Behavior:  3.90 (6)		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR (3), NER, GCM, AFEM

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:

960105:	Special Court Martial Conviction for violation of UCMJ, Article 128.Specification: In that [Applicant] did on or about 18 September 1995, commit an assault on upon Boatswain’s Mate Second Class S_ M_ L_ by striking him in the face with a means likely to produce death or grievous bodily harm, to wit: a one inch by eight inch wooden board.
	Sentence: To be reduced to pay grade E-4, and to be confined for a period of 60 days.
	960202:  CA Action: Sentence approved and ordered executed.

960312:	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 the Applicant’s Special Court Martial conviction.

960312:	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.

960327:	BUPERS message [Member’s conviction by his SPCM 1-96 for VUCMJ ART 128 requires mandatory ADSEP processing.]

960401:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: [Applicant was convicted at a Special Court-Martial for assault on a Second Class Petty Officer by striking him in the face with a wooden board.  This type of conduct cannot and will not be tolerated.] 

960424:	CNP recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious of offense.

960426:	Assistant Secretary of the Navy, Manpower and Reserve Affairs approves discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

960430:	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 19960613 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).

Issue 1.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by a summary court martial conviction for assault with a means likely to produce death or grievous bodily harm, documenting the Applicant’s misconduct. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant’s contention, that he was “convicted” twice for the same crime is without merit.  The Applicant’s misconduct was adjudicated at court-martial.  The subsequent discharge was an administrative determination that was not tantamount to a conviction.  Hence, the Applicant was not convicted a second time.  There is no evidence of impropriety or inequity in the Applicant’s processing.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 9, effective 
22 Jul 94 until 02 Oct 96, 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 128, assault, 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