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

 
ex-SN, USNR
Docket No. ND04-00452

Applicant’s Request

The application for discharge review was received on 20040128.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review 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 American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20041019.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Applicant was presumed guilty by the Navy and the charge by the state of Mississippi was dismissed.  The Navy violated the Applicant’s constitutional rights.”

“2.  The Applicant was dismissed with other than honorable discharge due to misconduct –commission of a serious offense.  As in Issue I above there was no commission of a serious offense.  The Navy did not charge the Applicant under UCMJ therefore what serious offense was the Applicant dismissed, other than the Navy convicting the Applicant unjustly and without trial.”

“3.  Due to the false charge does the Navy consider an unauthorized absence as a serious offense and when the XO was informed of the Applicant’s arrest he stated “Let him rot in jail.”

“4.  The Applicant was a good sailor.  His evaluation were always good and he was a BM3 (E-4) and had already taken the test for BM2 (E-5) This all within 3 + years.  This does not fit the description of a sailor that is unfit for the Navy but more like a personal vendetta.”

Additional issues submitted by Applicant’s representative (American Legion):

5.  “(Equity Issue) Behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553 and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Letter from M_ E. C_& Associates, P.A. dated November 15, 2002
Character Reference Letter from D_ H. B_ dated October 14, 2004
Character Reference Letter from D_ H_ dated October 14, 2004
Character Reference Letter from D_ E. H_ dated October 14, 2004
Character Reference Letter from D_ A_ W_ dated October 12, 2004
Character Reference Letter from Reverend J_ W_ dated October 12, 2004
Character Reference Letter from H. D. O_ dated October 14, 2004
Character Reference Letter from D_ A. O_ dated October 14, 2004
Character Reference Letter from J_ L. D_ dated October 13, 2004
Character Reference Letter from B_ A. B_ undated
Character Reference Letter from Pastor J_ W_ dated January 12, 2004
Memorandum of Authorities
Criminal Record Profile 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  950828		Date of Discharge:  000519

Length of Service (years, months, days):

	Active:    03  09  04
	Inactive:  00  11  17

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  38

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.50 (2)		OTA:  3.23 [5.0 evals]

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE “E”, SSDR (2), JMUA, NRSSR

Days of Unauthorized Absence:  Unknown

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

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

Chronological Listing of Significant Service Events:

960815:	Ordered to active duty for 4 years under the Seaman Apprentice (SN) program.

970811:	Applicant self referred and recommended by the Commanding Officer for Alcohol screening. 

971216:	Retention Warning:  Advised of deficiency (Poor military performance, to wit: Failure to complete Level II Intensive Outpatient Treatment at Alcohol Treatment Facility, Gulfport, MS), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980925:	USS STEPHEN W. GROVES (FFG-29) Medical Report: Suicidal ideation.  21 yo wm referred by BMC R (LCPO) for vague comments of suicide.  Member has been an unauthorized absentee from the ship for 14 days, returning to the ship 980923.  Relates he went UA “due to my BM1.  It was either I go UA or I went to the brig for punching him.” Relates specific incidents of alleged “abuses” of the deck seaman both verbally and physically.  Did not relate any specific plan for leaving the ship.  Also relates attempting to “slice his wrist with a razor” on 980919 because “I just couldn’t deal with it anymore.” Has a girlfriend in home port, one child (age 9 months) in South Carolina, and parents as support system.  While UA spent one week at parents then last week with girlfriend.  Also has two “good friends in crew who I can talk to when I need.” Mbr does not relate any specific plans of suicide.  States “I felt bad about the razor, it would really hurt my girlfriend and child.”

981107:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 981103 having been an unauthorized absentee since 0700, 981002 from USS STEPHEN W. GROVES (FFG-29).

000309:	USS STEPHEN W. GROVES (FFG-29) Medical Report: 22 Y/O Male with 3 yrs, 10 mos report to sickcall with thought of suicidal ideation for 2 days.  Patient states he has been depressed for the past month due to family separation.  Patient was arrested in FEB 2000 for suspected child abuse by the state after his daughter was taken to the hospital for injuries received in FEB 2000, at which time the patient’s wife placed a warrant for his arrest.  Member was detained for two days and reported back to the ship at which time a protective order was placed on him.  Member’s wife left with child to Tennessee one week after the arrest.  Patient states that’s when he really got depressed.  He said that his wife wanted to stay but the state said that they would take their daughter away if she stayed around.  Patient states that the depression increased in the last two days due to cancellation of his leave chit by the command based on recommendation from the Family Advocacy Center.  Member was looking forward to going to see his daughter for her birthday’ and spend time with his wife.  Pt has history of depression and suicidal ideation with one failed attempt (cut left wrist) in SEP 1998 due to working conflicts with LPO at that time.  Patient was evaluated at Mayport, FL and released back to the ship.  Patient currently states that he has suicidal ideation for 2 day’s but denies homicidal ideation.  Member states that he has plans (i.e., drink himself to death, hanging, jump off bridge) and has means to execute but is uncertain of a particular one at this time.  Patient states “I just want to end it all and relieve the pressure off me.”  Pt currently taking no medications, denies alcohol/drug abuse or problems.

000323:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey a lawful order.
Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

000330:	Kessler Medical Clinic: Patient came to clinic for follow up after being on the VA Inpatient psychiatric unit for suicidal ideation.  Patient reported going UA after release from hospital and has been in local area since 000320.  Patient reported having 45 days of confinement for going UA and stated he is going to be discharged.  Patient denied having any suicidal or homicidal thoughts, plans or intent and stated if he had thoughts of harming himself or others he would bring himself back to the MTF for care.  Patient stated he is focused on doing what is appropriate to expedite his discharge.  Patient denied having any’ desire for follow up at this time stating he thought he was handling this well.

000519:	Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense per MILPERSMAN 1910-142.  [Extracted from DD Form 214]

021206:	NDRB documentary record review Docket Number ND02-00380 conducted.  Determination:  discharge proper and equitable; relief not warranted.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000519 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issues 1, 2, 3, and 4:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant alleges his innocence to the child abuse allegations as well as unspecified violations of his constitutional rights.  The Board finds the Applicant’s contentions without merit.  The evidence of record indicates that the Applicant was awarded nonjudicial punishment (NJP) on two separate occasions for violations of UCMJ Articles 86 and 92.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, 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.  The Applicant has submitted no evidence and there is no evidence in the record to suggest that any of his constitutional rights have been violated or that he was denied any due process.  The Applicant’s contentions are not of the necessary substance or credibility to refute the presumption of regularity in governmental affairs.  Relief denied.

Additional Issue:  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant has now received both a documentary review and a hearing review.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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

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.  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