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

 
ex-BMSN, USN
Docket No. ND04-00338

Applicant’s Request

The application for discharge review was received on 20031218.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  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 documentary discharge review was conducted in Washington, D.C. on 20040922.  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:

1.  “I am requesting my discharge be changed from General(Under Honorable Conditions) to Honorable.

My contention is that I was given this discharge without evidence to support the charges.  The case was based on ‘He said-She said’ evidence only.  There was no proof beyond a reasonable doubt concerning the charges.  The incident happened off base, there were no tickets written and no charges were made by the Japanese government.  I had never been in trouble before, nor did I have a Mast before.

I was not given a chance for a fair hearing, I was not allowed to speak on my behalf.  I was falsely accused of this incident and deprived of my privileges.

I was always a good sailor and was looking to continue my service.”

Submitted by Applicant in a letter included with his application:

1.  “In mid month of November I (Applicant) and my friend D_ D_ J_ went to Fukuoka on the weekend go the clubs and parties.  While we were there we were just having a lot of fun hanging with our girlfriends.  We stayed in a Personal Hotel Ryu that weekend.  When we went to leave and go to the bus station to get back for work the next day, the Japanese police was stopping a random number of cars and people looking for the blacks guys that was suspected of shooting a pedestrian near by the area where the bus station was.  We didn’t know nothing about this incident.  So we was stopped and questioned, we didn’t know anything.  So they checked my girlfriend’s car and our bags.  They found a bb gun in her trunk but nothing in our bags.  They confiscated it and ask for our names and number to our commands.  His girlfriend told the police that either one of us or her was involved in any shooting with a bb gun.  The police believed her and they let us go but they said they were going to call the base to notify them of what was going on.  So we didn’t do anything wrong so we agreed and went back to Sasebo.  We arrived back to Sasebo maybe 11:00 pm Saturday night.  Later on the next day we gotten a call from base security wanting us to come in for some questions about what happen that weekend.  We told him we didn’t know nothing but I guess they didn’t believe us or they charged us with contraband.  The base police escorted us back to the ship and told the CDO what was going on and why we were brought back by them.  They checked our living space and they found nothing.  So I don’t know what happen to them charged that they brought upon us but there was no evidence of us having possession of any sort of bb guns.  So again we were free to go and we went to sleep.  The next day we had got ready to go to morning muster and I was there reading the Pod.  So the MMA came over and had ask me to come to his office for a minute.  I went and there I find my friend outside the office too.  So the next thing we know is that we were going to mast.  I didn’t know why but we couldn’t even explain what happen.  So they gave me some bogues charges that really didn’t have anything to do with our situation.  Am still asking the MMA what’s going on but he act like he didn’t know what was going on.  All he knew what he said is the captain requested a ‘open mast’ for some reason.  So I was very frustrated and puzzled because am in trouble for something I had nothing to do with.  So we when on to mast to get sentenced in front of our whole command.  I think they charges brought upon us was Article 92 and 134.  The captain clearly stated that it was a great discredit upon the navy and we did ‘drive-by’s on Japanese nationals.  He said that will not be tolerated.  That there had gotten me very upset.  I was so angry that I didn’t appeal my case.  The way it look I didn’t have a chance.  The discharged that we was given was a OTH.  We was suppose to be flown out and they said the captain put us on hold a few days or so.  We were off restriction by then.  While we was serving our sentence the captain all of a sudden switch it to a general (under honorable conditions).  Now that didn’t seem right to me since we allege to shoot people out of a moving vehicle.  So after we served our 45/45 we were put on class ‘B’ liberty.  So I had gotten a escort to the jag on the base and wanted to know what going on.  She ask me how my times have I been to mast I told her that this was my first time.  She looked confused.  So she ask me did they present any evidence at mast, I told her no.  I didn’t know to ask to see what evidence was used against me.  So she told me to consider it to be a Misconduct (commission of a serious offense) it had to have some type of evidence, victims, witnesses, etc.  There was none of that sort.  She said that why they maybe changed my discharge like that.  They were trying to cover it up from me and my friend.  That why we wasn’t allowed to use the computer or get a escort off the ship to do anything while on restriction.  So she ask the public affairs officer who handle our case to let her see the evidence that was brought to mast.  So he went to base a got it.  It was that police report stating that somebody called the Japanese police saying that some one was shoot at people with bb guns.  Me and my friend was Fukuoka and his girlfriend had a bb gun confiscated.  We were charged with contraband on base but none found.  There was no police report from Japanese authorities about the incident because the was no prove that we didn’t anything.  The base just took what they say in Fukuoka and try to put it into there own words making it seem that we committed the crime.  It happen in Fukuoka not Sasebo or on base.  By the time I was understanding what was going on she said I had a good chance to appeal it.  She set out a partisan for people that knew I was a good person so that I had some kind of background letting them know I didn’t do such a crime.  It was going well but by that evening my command found out what I was doing and they flew me out that following morning.  So I had a chance but not enough time………..”

Issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

1.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 09-09-04 and the following comments are hereby submitted.

We support the applicant’s contentions that his discharge be upgraded.

We refer the case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for an upgraded discharge.”

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):

	Inactive: USNR (DEP)	001221 - 010109	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  010110		Date of Discharge:  030226

Length of Service (years, months, days):

	Active:    02  01  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  4.00 (2)		OTA:  3.31

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Sea Service Deployment Ribbon, Overseas Service Ribbon

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:

021203:	NJP for violation of UCMJ, Article 92:  Failure to obey an order, violation of UCMJ Article 134: Disorderly conduct.
	Award:  Forfeiture of half months pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Applicant indicated no appeal was submitted.

030123:	Applicant notified of intended recommendation for discharge under general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

030123:  	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.

030124:	Commanding Officer recommended discharge under general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “BMSN D_ willfully and knowingly disregarded the regulations governing personal behavior in JUNEAU’s host nation of Japan and brought great discredit upon the United States Navy.  His possession of a replica firearm and egregious actions of firing it out of a moving automobile and striking a Japanese National pedestrian cannot be tolerated.  BMSN D_ was made fully aware of the expected standards of conduct and the sensitivities of the host Nation. … BMSN D_ has demonstrated he requires an unsustainable level of leadership and effort to maintain an acceptable level of good order and discipline.”

030213:	Commanding Officer directed discharge under 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 20030226  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 and D).

Issue 1:  In Applicant’s first issue, he claims his discharge was improper in that there was insufficient evidence to support the charges beyond a reasonable doubt because it was based on “he said she said” evidence and that Japanese authorities failed to issue him a citation or press charges.  Furthermore, Applicant claims his rights were violated at nonjudicial punishment in that he was not allowed to speak on his own behalf and thus was deprived of a fair hearing.

To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  The Commanding Officer’s decision to punish the Applicant at nonjudicial punishment (NJP) was not improper.  Pertinent laws and regulations permit the Commanding Officer to consider hearsay evidence and require only a preponderance of evidence to establish Applicant’s guilt when disposing of a case at NJP.  The record contains sufficient evidence to substantiate that Applicant committed the misconduct with which he was charged.

There is a presumption of regularity in the conduct of governmental affairs.  Applicant bears the burden of overcoming that presumption by substantial credible evidence.  Applicant claims he was not allowed to speak on his behalf at NJP thereby denying him a fair hearing.  Notwithstanding Applicant’s claims, no evidence has been submitted to support this contention.  As a result, the only evidence this Board has to consider are Applicant’s assertions.  Such evidence is neither substantial enough, nor credible enough to overcome the presumption of regularity enjoyed by the government.  Relief denied.

Issue 2:  In Applicant’s second issue, he claims his discharge was inequitable because he had never been in trouble or to nonjudicial punishment before and he had been a good sailor looking to continue his service.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  This characterization can result from one act or omission that constitutes a significant departure from the conduct expected of members of the Naval service.  The Applicant’s conduct, assault on a Japanese national with a BB pellet gun, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  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.  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 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