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

 
ex-AA, USN
Docket No. ND03-01280

Applicant’s Request

The application for discharge review was received on 20030728.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040812.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Investigative Report-P3, Par. 2 “No physical evidence was confiscated at the scene of the incident by any GLPD officer”.
P3, Par. 5 After conducting a permissive authorization for Search and Seizure on suspect S___, no evidence was recovered for investigative purposes.
Investigative Action Results of Interview, Par 2 After consensual search of suspect’s quarters, no evidence was recovered for investigative purposes. 
Investigative Report Summation:
Viol Art 134-Reckless Endangerment, P3, 4 Stated S__ constructed explosive device producing hot water.  This action was included in the confession of ITSN J___ S____.
Viol Art 134-Obstruction of Justice P4, Par 2, Conflicting statement by GMSN S. M. B___ who first said he saw S__ climbed out the window and tok the one litre bottle; then he said he saw S____ looking through the trash for he bottle, but he, B___, had already removed it from the trash pending the arrival from GLPD.  Which is correct?
Viol Art 134-Disorderly conduct (By exploding homemade device) P4 Par 3 Action confessed to by ITSN J___ S___.
Viol Art 107-False Statement S__ stated he did not throw the bottle which exploded.  S___ confessed he did, S___ stated he was in the bathroom, originally corroborated by S___, who later recanted and changed his statement.  Why? Which is correct?”

1.  “No physical evidence was found/collected directly linking me, S_, to the explosive device.”

2.  “J_ S_ confessed to construction of the device which exploded.”

3.  “My statement that I did not throw the bottle causing the explosion was factual.  Any previous unsuccessful attempt by me should not be considered since it was unsuccessful, thereby causing no commotion or disorder.

4.  “B_ submitted conflicting statements as to any action taken by me that he observed.”

“Basically, while the incident occurred in my quarters, I was actually only marginally involved.  I did climb out the window to recover the bottle.  In hindsight, I realize my immediate actions led to an overall presumption of guilt, but I was understandably concerned of consequences.  No statement from any witness says that I constructed or threw the device which exploded.  In summary, we have a second-party confession to the action which resulted in charges against me; and no witnesses who saw me construct the device which exploded.  Further, I was treated differently from anyone else involved.

I acknowledge my service record isn’t exactly without blemish, but prior incidents should not be a factor in determining guilt or innocence of these charges.  Should the Board find it in order to reverse the findings on this case, I ask that my Reenlistment code be changed to allow me to return to military service.  I believe I still have something to offer in the service of my country and ask only that I be given a second chance to do so.  The Board would have my solemn assurances that a second chance at a military career would not be wasted.

Thank you in advance for your time and consideration.”

Documentation

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

Statement from Applicant
Copy of DD Form 214
Copy of Command Investigative Report (6 pages)
Copy of Voluntary Sworn Statement from J___ S___ dated August 27, 2002 (3 pages)
Copy of Voluntary Statement from GMSN B___ dated August 25, 2003  
Complete discharge package unavailable

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010425 - 010516	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  010517		Date of Discharge:  021004

Length of Service (years, months, days):

	Active:    01  04  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  64

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (2)	Behavior:  1.00 (2)		OTA:  1.41

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

020208:	NJP for violation of UCMJ, Article 121: Larceny and wrongful appropriation.
	Award:  Forfeiture of $173.80 pay per month, restriction and extra duty for 7 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

020911:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation; violation of UCMJ Article 107: False official statement; violation of UCMJ Article 134: Disorderly conduct and reckless endangerment.
	Award:  Forfeiture of $289.00 pay per month, restriction to TPU NTC for 14 days, extra duty for 14 days, reduction to E-2.  No indication of appeal in the record.

020923:	Commanding Officer, Personnel Support Activity, Great Lake authorized the Applicant's discharge general (under 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 20021004 general (under honorable conditions) for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package. (D).

Issue 1:  Applicant argues that he was innocent of the charges that formed the basis of his separation.  Notwithstanding Applicant’s claims, the record contains a preponderance of evidence for a reasonable fact finder to conclude that Applicant was guilty of failing to obey an order or regulation, false official statement, and disorderly conduct and reckless endangerment.  As such, the Applicant’s misconduct supports the basis for his separation.  Relief denied.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when significant negative aspects of the member’s conduct or performance of duty outweigh positive aspects of the member’s service record.  The Applicant’s willful violation of UCMJ articles in his construction and detonation of a homemade explosive device clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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