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

  
 ex-ICFR, USN
Docket No. ND05-00594

Applicant’s Request

The application for discharge review was received on 20050218.  The Applicant requests the characterization of service received at the time of discharge changed to honorable.  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 20050608.  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. “My discharge was inequitable because it was based on three separate incidents. 1-Drunk and Disorderly on Oct. 31 2001  2-Assault consummated by battery on Dec 19 2002  3-Disrespect on Sep 23 2003.  I was not guilty of assault consummated by battery.  The hazing incident happened on Thursday Dec. 19, On Friday Dec 20 an investigation was conducted including statements to command security, interviews with the XO and a security lineup.  As stated in Document 3, Page 3, Sentence 5,6,7, I was cleared from the security lineup on the morning of Monday Dec 23 I was instructed by my LPO IC1 M___ L____ to report to XOI.  All 32 Members of my shop were questioned in turn at both XOI and Captains Mast, some two or three times ICFA F___ was never called for questioning.  I plead not guilty.  The captain said I was lying and awarded me a maximum punishment of 45 days restriction, 45 days extra duty, reduction in rank from E-3 to E-2 and ½ months pay times 2 as stated in Document 1, Page 3.  After Captains Mast was complete we were taken to legal to read our rights and sign our chargers which I found out at a later time was supposed to be done prior to Captain Mast.  I made a decision to appeal the judgment.  What I was unaware of was that you cannot appeal a verdict, only the punishment awarded.  I spoke to FN F___ when he returned from Christmas leave.  He wrote a voluntary statement on my behalf, Document 3, Page 3.  I submitted my appeal on Jan. 06 2003, Document 2.  My appeal was denied by the commander of Cruiser-Destroyer Group Twelve, Document 2, Page 4, in the USS Enterprise Commanding Officers endorsement (Document 2, Page 3) he stated that I did not have a reason for submitting my appeal late (sentence 1,2, paragraph 3).  In ICFN F___’s statement (Document 3, Page 3, Sentence 8,9) he stated that he did not return from leave until Jan 06 2003 at which time I received his statement that was submitted with my appeal.  The Captain also stated (Document 2, Page 3,  Paragraph 4, Sentence 1,2,3,4) that IC3 P___, IC3 P___, and ICFN S___ identified me as having participated in the hazing.  Statements were not submitted by IC3 P___ or IC3 P___.  ICFN S____ did not identify me in his statement (Document 5).  ICFN E___ did not identify me in his statement (Document 6).  IC3 K___ did not identify me in his statement (Document 4).  Statements were not submitted by IC3 J___ B___ who was also charged with hazing.  The Captain also stated (Document 2, Page 3, Paragraph 4, Sentence 7,8,9) that FN F___ did not know everyone involved.  I stood watch in FN F___ work center for 4 hrs a day.  He knew who I was.  The Captain also stated (Document 2, Page 3, Paragraph 4, Sentence 9, 10) that FN F___ did not see everyone who participated.  FN F____ never stated that he did not see everyone there (Document 3).  The Commander of Cruiser-Destroyer Group Twelve stated (Document 2, Paragraph 3, Sentence 1,2,3) that my guilt is fully supported by the facts.  The facts are that there is no supporting evidence of my guilt in the hazing of FN F___ because I was not involved.  The only person who clearly placed me at the scene of the crime was the Captain after I submitted my appeal.  I was also denied a special court martial after my appeal was denied.  This incident prevented me from taking the E-4 exam, cost me a considerable amount of money in fines and unearned base pay and was the beginning of the end of my navy career.  I served my time honorably with a few minor violations and served in two wars.  Without this charge in my record it is my opinion that I would not have been administratively separated and would have finished my 7 months with a possible 4 year reenlistment.  FN F___ can be reached via email at F__@Enterprise.Navy.Mil.”

Documentation

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

Applicant’s DD Form 214
Report and Disposition of Offense(s)(3 pages)(23 Dec 02)
Captain’s Mast Accused Acknowledgement of Appeal Rights (23 Dec 02)
Applicant’s Appeal of Nonjudicial Punishment (06 Jan 03)
Commanding Officer’s Recommendation for Appeal Denial (17 Jan03)
Commander’s Cruiser-Destroyer Group TWELVE Appeal Denial (22 Jan 03)
Summarized Statement from ICFA C___ M. F____
Voluntary Statement from ICFA C___ M. F___ (2 pages)
Military Suspect’s Acknowledgement and Waiver of Rights from IC3 J___ K__ (3 pages) (20 Dec 02)
Military Suspect’s Acknowledgement and Waiver of Rights from IC2 M___S___ (2 pages) (20 Dec 02)
Military Suspect’s Acknowledgement and Waiver of Rights from ICFN C___E___ (2 pages) (20 Dec 02)
Summarized Interview Statements from N___ D. S___ (20 Dec 02)
Voluntary Statement from ETC L___ N___ (20 Dec 02)
Summarized Interview Statements from ETC L___ N___ (20 Dec 02)
Voluntary Statement from   IC3 J___ B___ (2pages) (20 Dec 02)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000922 - 010113	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010114		Date of Discharge:  040408

Length of Service (years, months, days):

	Active:    03 02 21
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12 (GED)			AFQT:  85

Highest Rate:  IC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)		Behavior:  2.00 (3)		OTA:  2.94

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC, NDSM, AFEM, SSDR(2)

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

010118:	Applicant reported for initial tour of active duty.

010718:	Applicant reported aboard USS Enterprise (CVN-65).

011101:	NJP for violation of UCMJ, Article 134: (2 Specs), Drunk and disorderly conduct on 011031.
	Award:  Forfeiture of $584.00 pay per month for 2 months (1 month suspended for 6 months), restriction for 60 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

011106:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 134 (2 Specs), drunk and disorderly on 011031, that led to your non-judicial punishment of 011101.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011214:	Promoted to IC3.
	
020503:	NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 020327; violation of UCMJ Article 91: Disrespect in language to petty officer on 020327; violation of UCMJ Article 92: Failure to obey a lawful order on 020419 and 020304; violation of UCMJ Article 134: Incapacitated for duty.
	Award:  Forfeiture of $676.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days (15 days suspended for 6 months), reduction to E-3.  No indication of appeal in the record.

021223:	NJP for violation of UCMJ, Article 92: Failure to obey general order on 021219; violation of UCMJ Article 128: Assault consummated by a battery on 021219.
	Award:  Forfeiture of $649.00 pay per month for 2 months, restriction and extra duty for 45 days (14 days suspended for 6 months), reduction to E-2.  No indication of appeal in the record.

031126:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Master Chief Petty Officer by being disrespectful in language on 030923; violation of UCMJ Article 117: (3 Specs), Provoking speeches, wrongfully toward a Master Chief Petty Officer and First Class Petty Officer on 030923.
	Award:  Forfeiture of $400.00 pay per month for 2 months, confinement for 3 days on Bread & Water, reduction to E-1.  No indication of appeal in the record.

040217:	Applicant notified of intended recommendation for discharge characterized as under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

040217:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040226:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense. 

040316:	COMCRUDESGRU TWELVE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040408:	DD Form 214: Applicant discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040408 under other than honorable conditions for misconduct due to commission of a serious offense (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:  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 retention warning, and four nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 91 (insubordinate conduct), 92 (failure to obey a general order), 117 (provoking speeches), 128 (assault commuted by battery) and 134 (drunk and disorderly/incapacity for duty) of the UCMJ.  The Applicant’s violations of Articles 92 and 128 each meet the criteria for discharge by reason of misconduct due to commission of a serious offense, which normally results in an other than honorable conditions characterization.  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.

In accordance with the “Manual for Courts Martial” service members attached to a vessel do not have the right to demand trial by court-martial in lieu of nonjudicial punishment.  At the time of discharge the Applicant was attached to USS Enterprise (CVN-65).  Therefore, the Applicant was not eligible to demand a special court-martial.  The Applicant’s issue is without merit.  Relief denied.

The Applicant contends that he is innocent of the charges he was convicted of on 02 Dec 23 through a nonjudicial punishment proceeding and without this conviction he would not have been administratively discharged.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  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.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right.

In the Applicant’s case, the Board could discern no inequity and therefore consider the Applicant’s discharge equitable.  The Applicant contends that his discharge was unjust since it was “based on three incidents,” one of which he claims he is not guilty.  For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP per regulation.  Accordingly, relief on this basis is not warranted.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 should 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.  As of this time, the Applicant has not provided documentation for the Board to consider.

 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.  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 general order), 128 (assault consummated by battery)] if adjudged at a Special or General Court 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