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

    ex-AOAA, USN
Docket No. ND05-00257

Applicant’s Request

The application for discharge review was received on 20041129.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I A_ K. T_ (Applicant) agreed to accept an other than honorable discharge under extreme duress, including, but not limited to, over 365 three hundred sixty five days of restriction/PCF Yokosuka brig time, for, a crime I did not commit, in a case that was dropped from court martial, after 8 months of Class “C” Liberty Risk (a violation of the USS Kitty-Hawk’s own liberty risk program, which states “in makin the determination to grant or curtail liberty, the sailor’s behavior during only the previous three months may be considered.”)  A case that was then sent to Captain’s Mast, only after the USS Kitty-Hawk deployed, (which meant my legal counsel (LtJG J_ L_ and LCDR J_), could not be present) (of course).  I was found guilty of two counts of aggravated assault at Captains Mast because the rules of evidence don’t apply at C.O.’s Mast.  Even with two witnesses the one who was with me when the incident took place and another who actually heard a confession from another suspect the day after the incident happened.”

Documentation

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

Correspondence from Congressman A_ R. W_ (10 pages)
Applicant’s DD Form 214
Applicant’s DD Form 2366
Letter from Department of Veterans Affairs
Letter from Applicant (6 pages)
Sworn Statement to NCIS from Applicant dated 08 January 2003 (2 pages)
Sworn Statement to NCIS from ADAN E_ J_ dated 06 June 2003 (2 pages)
Sworn Statement to MS3 M_ from ADAN S_ K_ dated 03 January 2003 (2 pages)
Sworn Statement to NCIS from ADAN S_ K_ dated 08 January 2003 (2 pages)
Sworn Statement to NCIS from R_ V. H_ dated 13 January 2003
Excerpt from Article 32 Investigating Officer Report undated
Applicant’s charge sheet, preferral of charges dated 05 May 2003, withdrawn and dismissed, undated
Request for Counsel dated 06 May 2003
Email from Trial Service Office Pacific to USS Kitty Hawk Legal Officer dated 10 June 2003
72 Hour Memorandum Concerning Applicant’s Pretrial Confinement dated 11 June 2003
First Endorsement on Article 32 Investigating Officer’s Report of 02 July 2003
Email from GM3 B_ C_ to Applicant dated 17 October 2003, RE:  Liberty Risk Program (4 pages)
Desk Journal Entry, dated July 29, 2003
Class “C” Liberty Risk Order dated 29 July 2003
Class “C” Liberty Risk Order dated 08 August 2003
Class “C” Liberty Risk Order dated 08 August 2003
Class “C” Liberty Risk Order dated 15 August 2003
Class “C” Liberty Risk Order dated 22 August 2003
Class “C” Liberty Risk Order dated 29 August 2003
Class “C” Liberty Risk Order dated 05 September 2003
Class “C” Liberty Risk Order dated 19 September 2003
Class “C” Liberty Risk Order dated 10 October 2003
Class “B” Liberty Risk Order dated 30 October 2003 (2 copies)
Letter from Applicant undated
Captain’s Mast Script (2 pages)
Preliminary Inquiry Report, dated November 18, 2003
Restriction Orders dated 18 November 2003 (3 pages)
Captain’s Mast Accused Acknowledgement of Appeals Rights
Nonjudicial Punishment Appeal dated 22 November 2003 (2 pages)
Request for Stay of NJP Punishment Chit dated 07 December 2003, unsigned
Memorandum dated 08 December 2003
Email from USS Kitty Hawk Legal Officer to USS Kitty Hawk Weapons Officer dated 08 December 2003
Class “C” Liberty Risk Order dated 12 December 2003
Class “C” Liberty Risk Order dated 19 December 2003
Class “C” Liberty Risk Order dated 10 January 2004
Partial Charge Sheet
Applicant’s Form NAVPERS 1070/604, Awards

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USNR (DEP)	000613 - 000628	COG

Period of Service Under Review:

Date of Enlistment:  000629		Date of Discharge:  040120

Length of Service (years, months, days):

	Active:    03  06  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)		Behavior:  2.00 (2)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCOSR, NDSM, AFEM, MUC, SSDR, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

031118:	NJP for violation of UCMJ, Article 128 (2 Specs):  Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm; violation of UCMJ, Article 134:  Disorderly conduct.
	Award:  Forfeiture of $682.00 pay per month for 2 months, restriction for 60 days, reduction to E-2.

040105:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 90:  Disobeying a superior commissioned officer, Article 92 (2 specifications):  Violation of a lawful order, and Article 95:  Flight from apprehension.

040107:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant admitted he was guilty of a violation of the UMCJ Article 90, disobey a superior commissioned officer, and Article 95, Flight from Apprehension. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant indicated he understood that he had the right to submit a statement on his behalf and that such statement could not be admissible against him in a trial by court-martial.  The Applicant did not desire to submit a statement.

040107:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

040109:	Commander, Carrier Group approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040120 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  On 040107, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted he had an opportunity to consult with defense counsel and that he was guilty of some of the offenses with which he was charged, specifically disobeying a superior commissioned officer and flight from apprehension.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  There is evidence in the record to suggest that the Applicant’s service was marred by an aggravated assault, disorderly conduct, orders violations, and resisting apprehension.  This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 128, and 134 and a separation in lieu of trial by court-martial for violations of UCMJ Articles 90 and 95.  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.  Relief is not warranted.

The Applicant argues that his discharge is improper or inequitable because of his lengthy pre-trial confinement and restriction time.  Unfortunately, the NDRB has neither the expertise nor the authority to determine the propriety of the Applicant’s pre-trial confinement and restriction time while aboard the USS KITTY HAWK (CV 63).  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant contends his discharge is improper or inequitable because his chain of command discriminated against him based upon his religion.  Applicable regulations permit the upgrade of a discharge under equitable grounds if it can be determined that the discharge was tainted by discrimination.  The Applicant bears the burden of establishing his claims by a preponderance of the evidence.  Moreover, these claims must be established through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the USS KITTY HAWK (CV 63) chain of command engaged in any discrimination against the Applicant because of his religion.  The Applicant’s statements alone are not sufficient to establish a claim of discrimination.  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 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 90, Disobeying a superior commissioned officer, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.

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

E.  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