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

ex-MMFR, USN
Docket No. ND04-00674

Applicant’s Request

The application for discharge review was received on 20040318.  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 listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  Additionally, after consideration of the Applicant’s post-service accomplishments, the board determined that partial relief was warranted on the basis of equity.  The Board’s vote was 4 to 1 that the character of the discharge shall change to GENERAL (UNDER HONORABLE CONDITIONS) and that the narrative reason shall be changed to SECRETARIAL AUTHORITY, with Separation Code of JFF, authority: NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel (Civilian Counsel):

“Issue 1. (Impropriety) The notification of administrative separation by reason of misconduct due to commission of a serious offense to the Applicant was improperly based on minor offenses that did not warrant a punitive discharge per the Manual of Courts Martial which constitutes prejudicial error.

Issue 2. (Impropriety) The administrative board (ADB) improperly considered minor offenses for determination of Applicant’s misconduct due to commission of a serious offense which was prejudicial error and did not comport to fundamental fairness. While the offenses were minor, the nature of the involved immature behavior could only taint the proceedings to the Applicant’s detriment and he was deprived of due consideration.

Issue 3. (Equity) The ADB deliberated for a total of 15 minutes to consider all evidence, included the improperly submitted minor offenses, evidencing that the ADB’s actions were arbitrary and capricious.

Issue 4. (Impropriety) The ADB based its findings and recommendations on improper and prejudicial evidence which is considered error. Basing separation on minor offenses which do not have a punitive discharge authorized constitutes prejudicial error.

Issue 5. (Impropriety) The content of the CO’s report was replete with inaccuracies, errors, and incorrect conclusions which constituted prejudicial error in the discharge proceedings conducted by the command.

Issue 6. (Equity) The command lost the original report of the board and Applicant received incomplete records from the Naval Personnel Records Center indicating lack of due consideration was afforded to Applicant and his discharge, to Applicant’s detriment.

Issue 7. (Equity) The Applicant’s final evaluation marks and recommendation for reenlistment reflect that his overall military service was satisfactory and consistent with a discharge under Honorable conditions.

Issue 8. (Equity) Under former and current regulations, the violations considered at the single NJP did not constitute offenses of a flagrant degree of severity normally reserved for an 0TH and the Applicant’s overall record is more properly characterized as under Honorable conditions.

Issue 9. (Equity) Post-service conduct. Pursuant to 10 USC 874(b) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, the Applicant requests the Board’s consideration of the above matter and his post-service conduct to substantiate the requested discharge upgrade.”

Documentation

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

Letter from Applicant, dated March 16, 2004
Statement of facts from Applicant’s attorney
Applicant’s DD Form 214 (2)
Chronological summary of significant service events (2)
MILPERSMAN 1910-142 (formerly 3630600), dated August 22, 2002 (2)
Notification of Administrative Board Procedure, dated September 26, 1995 (2)
NJP report NAVPERS 1626/7, dated August 28, 1995 (2)
MCM Punishment Limits Chart (2 pages) (2)
MCM, Article 91, Elements, p. IV-22 (2)
Appointment of Administrative Board, CO’s letter, dated November 3, 1995 (2)
Administrative Discharge Board report, summary of proceedings, dated November 9, 1995 (2 pages)
Commanding Officer’s recommendation, dated November 16, 1995 (2)
Legal Officer’s letter, dated November 16, 1995 (2)
National Personnel Records Center letter, dated August 1, 2003(2)
Certificate of military service, dated August 1, 2003 (2)
Final performance evaluation and performance record (4 pages) (2)
Official transcript from Mira Costa Community College, Oceanside, CA (2)
Letter of President’s List selection, Mira Costa College, dated January 30, 2001 (2)
Statement of T_ L_ L_, College Professor of Applicant, dated November 4, 2003 (2)
Memorandum of COL R_ B_, Deputy Director, Military Personnel, CA National Guard, approving RE-4 waiver for Applicant’s enlistment in California Army National Guard, dated April 2, 1999 (2)
CO’s letter of recommendation, Capt D_ L_  P_, CAARNG, dated December 4, 2003 (2)
Letter of recommendation, SSG S_ J_ S_, AR, CAARNG, dated December 22, 2003 (2)
DA Form 4187-E, Personnel Action, advance Applicant to E-4, dated February 28, 2000 (2)
DA Form 4187, Personnel Action, advance Applicant to E-3, dated February 9, 2000 (2)
DA Form 1059, Service School Academic Evaluation, dated September 30, 1999 (4)
Orders to temporary State Active Duty, dated June7, 2002 (2)
Letter of volunteer service, Officer S_ G_, Oceanside Police Dept, dated January 5, 2004 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940504		Date of Discharge:  951218

Length of Service (years, months, days):

	Active:    01  07  14
	Inactive:  00  00  01

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  32

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  3.20 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Star

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:

950406:	Counseling: Advised of deficiency (personal behavior), notified of corrective actions and assistance available.

950411:	Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

950610:	Counseling: Advised of deficiency (performance and responsibility on 950605 and 950606), notified of corrective actions and assistance available.

950901:	NJP for violation of UCMJ, Article 91 (4 specs): Insubordinate conduct toward a Warrant Officer, Noncommissioned Officer, or Petty Officer, (4 Specs), on or about 950820 and 950823; violation of UCMJ, Article 117: Provoking speeches or gestures on or about 950820.
	Award: Forfeiture of $425 per month for 2 months, restriction for 60 days, reduction to E-1.  Appealed 950905.  Appeal denied 950909.

950929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950930:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

951109:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of serious offenses as evidenced by all punishments under the UCMJ in his current enlistment. By unanimous vote the Administrative Discharge Board recommended separation.  By unanimous vote the recommended  characterization of the discharge is  under other than honorable conditions.

951116:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951218:	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 19951218 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 voted four to one to change the characterization of the discharge to general (under honorable conditions) and the narrative reason to Secretarial Authority (C and D).

Issues 1, 2.   A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge.  In the course of reviewing the Applicant’s service record and transcript of the administrative discharge board, the Naval Discharge Review Board determined that the Applicant was charged with offenses that did not constitute a serious offense as defined by the MILPERSMAN.  Accordingly, his separation on that basis was improper. Relief granted.

Issues 3, 4, 6.  In the Applicant’s case, the Board could discern no impropriety or inequity regarding these issues.  Specifically, the Applicant alleged that administrative discharge board was improper in that it met for “only 15 minutes to consider all evidence”.  There is no time requirement for administrative discharge board deliberation and there is nothing in the record to indicate any wrongdoing by anyone in the board proceedings.  The Applicant contends that the administrative discharge board based its findings and recommendations on improper and prejudicial evidence.  There is nothing in the record to support this issue.  The Applicant also contends that the “command lost the original report of the board “.  The record shows that while the legal officer on the USS PELELIU had misplaced the original report, the Applicant’s counsel had retained a copy.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

Issue 5.  The Applicant contends that the “CO’s report was replete with inaccuracies, errors, and incorrect conclusions”.  The CO’s letter does repeat an administrative error in stating  “No board” in reference to the Findings, Recommendation, and Type of Discharge recommended by/of the administrative separation board.  The CO’s statement on that same letter did, however, concur with the boards recommendation that the Applicant should be separated by reason of misconduct due to commission of a serious offense and the separation be characterized as Other Than Honorable.  The CO’s error is considered harmless and does not constitute the basis upon which relief can be granted.  Relief denied.

Issues 7, 8.  The Applicant contends that he served the United States well and he is entitled to an upgrade.  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.  An Under Other Than Honorable Conditions 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.  The Applicant’s service was marred by a nonjudicial punishment proceeding for violations of Articles 91 and 117 of the UCMJ.  In addition, the Applicant’s service record book has four counseling entries for deficiencies in personal behavior, performance, and responsibility.    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.  Relief is not warranted.

Issue 9.  The Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions).  The Applicant’s proof of educational pursuits, documentation of community service, service in the National Guard, and strong references demonstrated that he possessed character and drive that was not evident during his tour of active duty.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.

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.  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