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

  ex-MSSA, USN
Docket No. ND04-01153

Applicant’s Request

The application for discharge review was received on 20040716.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to administrative or other term to indicate honorable service.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan Area.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20050323.  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 and reason for the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

The Applicant’s issues, as stated on the application, were superceded by the Applicant’s counsel.

Issues submitted by Applicant’s counsel/representative (American Legion):
“1.  (Equity Issue) This former member opines that there were extenuating factors that contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.

2.  (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

3.  (Equity Issue) This former member finally requests that his narrative reason for discharge be changed from Misconduct to Secretarial Authority as a matter of clemency.

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, 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, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

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:

Criminal Records Check, dated July 18, 2003
Character Reference Letter from R_ N_, Ph.D., dated April 17, 2003
Character Reference Letter from B_ G_. Jr., BD, MD, DD, dated July 15, 2003
Character Reference Letter from R_ R_ , dated July 16, 2003
Character Reference Letter from J_ M_, undated
Letter from Applicant, dated April 14, 2003
Applicant’s DD Form 214
VA Form 21-22 (3 pages)
Cover Letter from North Carolina Department of Administration dated July 1, 2004
Letter from the American Legion to the Applicant, dated February 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900224 - 900709	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900710		Date of Discharge:  931229

Length of Service (years, months, days):

	Active:    03  05  20  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (2)		Behavior:  3.5 (2)		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901220:	NJP for violation of UCMJ, Article 92: (2 Specifications), Specification 1: Failed to obey a lawful order by sexually harassing a female service member on 1845, 900929; Specification 2: Failed to obey a lawful order by sexually harassing a female service member on 1928, 901114, violation of UCMJ Article 117: Wrongfully use provoking words on 1928, 901114; violation of UCMJ Article 128: Unlawfully assaulted a female service member on 1845, 900829.
	Award:  Forfeiture of $362.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

901220:	Retention Warning:  Advised of deficiency (Applicant found guilty at CO’s NJP for violations of UCMJ, Article 92: Sexual harassment, Article 117: Provoking words, Article 128: Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
		
930709:	Applicant to pretrial confinement.
 
931001:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 89:
	Specification:  Disrespectful in behavior towards a superior commissioned officer on 930709.  
Charge II:  violation of the UCMJ, Article 117 (2 Specifications); Specification 1:  Wrongfully use provoking words towards FN on 930602; Specification 2:  Wrongfully use provoking words towards FN on 930602.  
Charge III:  violation of the UCMJ, Article 128;
Specification:  Unlawfully push FN by shoving him on the back of the neck and head on 930602;
Charge IV:  violation of the UCMJ, Article 134 (2 Specifications); 
Specification 1:  Wrongfully communicate a threat to FN on 930610; Specification 2:  Wrongfully communicate a threat to LT on 930709.    
	Findings:  to Charges I, III and IV, and all of the specifications thereunder, guilty.  To Charge II and the sole specifications thereunder, not guilty. 
	Sentence:  Confinement for 116 days, reduction to E-2.
	CA 931104:  Sentence approved and ordered executed.

931005:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Special Court-Martial conviction of 931001.

931005:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

931013:	Applicant from confinement and restored to full duty.

931015:	An Administrative Discharge Board convened and granted the Counsel for the Respondent’s motion for a continuance.

931104:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

931207:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

931223:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

040504:	NDRB documentary record review Docket Number ND03-01158 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931229 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:  The Applicant contends that extenuating factors mitigates his conduct 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.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by nonjudicial punishment proceedings and a special court-martial conviction for violations of Articles 89, disrespect toward a superior commissioned officer, 92, failure to obey order or regulation, 117, provoking speech or gestures, 128, assault, and 134, wrongfully communicating a threat.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  The Board was not persuaded that any of the extenuating factors offered by the Applicant were sufficient to mitigate his misconduct.  Relief is not warranted.

Issue 2:  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 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions and testimony, including his character reference letters, history of employment, community service, and criminal records check.  Although impressive, the Board concluded that the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

Issue 3:  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.  A wide range of UCMJ offenses meet this criteria, including disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder.  A person in the military must abide by the standards as set forth in military regulations and laws, regardless of what guidelines his civilian counterparts might utilize.  While the Board regrets that the Applicant must live with the stigma associated with the term “serious offense,” it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the Applicant's discharge.  The evidence of record, including the Applicant’s own testimony, indicates that he committed several “serious offenses” while on active duty.  As such, the Applicant’s issue is without merit.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023