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

 ex-MASR, USN  
Docket No. ND04-01416

Applicant’s Request

The application for discharge review was received on 20040917.  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 “Blank.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 narrative reason 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.  “The basis of my submission of this package is to have my discharge reviewed.  There are a few key points that I must point out.  One being that the date I was notified for discharge and the reason I was discharged.  I was notified on 22FEB03.  The reason for discharge is commission of a serious offence; the serious offence was from a mast in  MARCH of 2003.  I was given a page 13 that states I was to be held on active duty.  Then one month later received notification for an administrative review board biased in that incident.  Thereafter I was discharged on the basis of the mast in March 2003. The other point I was must make respectfully to the board is the letter signed by MASR H_ 's Lawyer.  This letter stated that H_ did not wish to press charges; H_ was not harassed or assaulted by myself.  Based off the Preponderance of the Evidence it was found that I indecently assaulted H_.  This was found with no video expert examining the video.  The person in the video that grabbed MASR H_s’ breast was not myself and H_ stated that numerous times.  Likewise, I know I have no legal standing over the evidence but the evidence was taken unlawfully from MASA A_’s barracks room by MA2 D_ D_.  So in summary the evidence was taken illegally, it was not me on the video as stated; the offence they discharged me for happened months after they notified me they were discharging me.  This makes no sense.  Furthermore the other persons involved went trough the administrative process and were retained.  Two months after they went to their admin boards the Admiral Said that he was pursing Best Interests of the Navy Discharges for everyone else, 13 Sailors.  Once the New Admiral took over in December of 2003 The Best interests of Navy Discharges were halted.  With all this being said a prudent person would have to think that something was not right. Please carefully review all the information I have provided and make a decision biased on the best interests of myself and the Navy.

M_ P_ A_ (Applicant)”

Documentation

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

Applicant’s DD Form 214 (2 copies)
Letter from Applicant named Attachment 293A
Copies of package submitted to BCNR (59 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010815 - 010920	COG
	Active:   Prior service not found

Period of Service Under Review:

Date of Enlistment:  010921		Date of Discharge:  030515

Length of Service (years, months, days):

	Active:    01  07  25
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rate:  MASN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  3.00 (2)		OTA:  2.81

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NMOSR, 9MM PR, M-16 RR

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:

030114:	NJP for violation of UCMJ, Article 134 (2 Specs):  Drunk and disorderly and indecent exposure.
	Award:  Forfeiture of ½ month’s pay for 2 month(s), restriction and extra duty for 45 days, reduction to E-1.  Applicant appealed NJP on 030116.  Applicant’s appeal denied on 030131.

030129:	Retention Warning:  Advised of deficiency (drunk and disorderly and indecent exposure) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030214:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030214:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030327:	NJP for violation of UCMJ, Article 91 (2 specs):  Disobeying a petty officer.
	Award:  Forfeiture of $200 per month for 2 month(s) (susp for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

030404:	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 general (under honorable conditions).

030430:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

030502:	Commanding Officer, U.S. Naval Forces Marianas, directed 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 20030515 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:  Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ), Articles 134 and 91 thus substantiating the misconduct.  Drunk and disorderly, as well as indecent exposure, are considered serious offenses and resulted in the Applicant’s recommendation for discharge.  The Applicant was issued a retention warning on 030129 as a result of his NJP on 030114, and while there is no evidence that he violated this Page 13 entry warning prior to the 030214 notice of intended administrative separation, the record clearly shows a violation of the warning prior to 030404, the date his administrative discharge review board convened.  On 030327, he committed another serious offense by violating Article 91 of the UCMJ.  In view of this later violation, the Board determined that Applicant’s administrative separation processing was neither inequitable nor improper.  The Applicant has not provided evidence to support his allegations that the video recording the incident was taken illegally, or that the administrative discharge board was biased.  Accordingly, the presumption of regularity applies.  The Applicant was provided the opportunity to present his case before an administrative discharge board, and the administrative discharge board found, by unanimous vote, that the Applicant had committed a serious offense and that the offense warranted separation and recommended discharge with a general (under honorable conditions).  The Applicant’s summary of service 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.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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 5420.174D 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