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

  ex-AOAR, USN
Docket No. ND05-00619

Applicant’s Request

The application for discharge review was received on 20050217.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board’s vote was 3-to-2 that the character of the discharge shall change.  The discharge shall change to:  
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:

"February 4, 2005

To whom it may concern:

My name is S_ F_ Jr. and I was once a part of the United States Navy.  I had many great moments in my career of almost five years.  I earned a flawless record, until one day one single incident took all of that away from me.

I had recently transitioned to NSF Diego Garcia.  I left behind my wife, who was pregnant with our two children, friends and family.  One night while out with some new friends that I had made a fight started in the middle of the club.  I continued to mind my own business simply because the fight had nothing to do with me and I wasn’t about to put myself in any kind of compromising position.  Over the next few days I was questioned about the incident by a Master at Arms.  I told him only of what I had heard; I hadn’t observed the confrontation.  When I later returned to my room after being questioned, there were other sailors that were joking and laughing about the incident.  I personally did not find it very amusing simply because it was rumored that one individual involved in the fight had been severely injured.  I clearly informed them that it was not a laughing matter.  I left the conversation at that.  It later came to my attention that a Master at Arms that lived two doors down from me had called in the incident and informed others that my statements were false.  I was then called upon again for questioning.  In doing so, I was informed that they believed they knew who was involved in the incident.  They wanted me to inform them of what I had recently heard.  By this time there was a rumor going around that a seaman by the name of M_ C_ hit an airman in the Air Force, I told the investigating authorities everything I knew and they told me, “Everything will be okay.  Thank you for your cooperation.” A week later I was summoned to appear in my whites to be tried in an open Captains Mast.  I received a reduction in rank from a Third Class Petty Officer to an Airman for disobeying a lawful order and interfering in an ongoing investigation.  To make matters worse, three hours later I appeared before a Court Martial hearing and received a reduction in rank from an Airman to an Airman Recruit.  I was given 120 days restriction and an Other than Honorable Discharge.  All of these events took place in one day, within a couple of hours of each other.  It is not only unjust because I feel that the legal system failed me but because I was punished for a serious offense under the Uniformed Code of Military Justice that I had absolutely no knowledge of and did not commit.

In all of my naval career I never once had been reprimanded to such a severe degree.  I never understood how a testimony based on hearsay enabled one man to strip another man not only of his dignity but also his pride.  I earned my Good Conduct Medal, I earned my chevrons, I earned a place in the United States Navy.  I only ask that who ever should review my case take into consideration the facts; the most important fact being that an example was made out of the wrong sailor.  This whole event was not only unjust but a complete misrepresentation of, “Innocent Until Proven Guilty.” I became an easy fix for a complicated situation.

I feel it duly just to restore my rank as a Third Class Petty Officer and have my discharge characterization changed to Honorable.  I deserve at least that.  I don’t expect any miracles; I just ask for what is fair.  If I cannot re-enlist back into the United States Navy I will at least know that I gave it my best shot.

Thank you for your time and consideration.

Respectfully yours
[signed]
S_ F_ Jr. (Applicant)"

Documentation

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

Charge Sheet for charges preferred on October 10, 2002 (3 pages)  
Record of Trial for proceedings held on October 10, 2002 (2 pages)
Administrative Separation Processing Notice dated  (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971031 - 971229	COG
	Active:   USN 			971230 – 011226	HON

Period of Service Under Review:

Date of Enlistment:  011227		Date of Discharge:  021204

Length of Service (years, months, days):

	Active:    00  11  08
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  56

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  2.50 (2)		OTA:  2.84

Military Decorations:  None

Unit/Campaign/Service Awards:  9MM/M9 Pistol Marksman Ribbon, Good Conduct Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal

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:

011227:	Reenlisted on board USS HARRY S TRUMAN (CVN 75) for 6 years.

021010:	NJP for violation of UCMJ, Article 90:  Having received a lawful command from Major D_ M_, USAF, on active duty, his Superior Commissioned Officer, then known by the said Aviation Ordnanceman Third Class F_ (Applicant) to be his Superior Commissioned Officer, to not speak with anyone about an ongoing investigation into an assault upon Airman F_ D. M_, or words to that effect, did at U.S. Navy Support Facility Diego Garcia, from about 021006 to about 021009, willfully disobey the same; violation of UCMJ Article 107: Did, at U.S. Navy Support Facility Diego Garcia, on or about 021006, with intent to deceive, make to Master-at-Arms First Class J_ H. B_ II, USN, on active duty, an official statement, to wit: “that he did not know anything about an assault upon Airman F_ D. M_”, or words to that effect, which statement was totally false, and was then know by the said Aviation Ordnanceman Third Class F_ to be false; violation of UCMJ, Article 134: Did, at U.S. Navy Support Facility Diego Garcia, on or about 021006, wrongfully endeavor to impede an investigation into an assault upon Airman F_ D. M_, by advising Yeoman Third Class T_ D. M_, Yeoman Third Class R_ D. P_, and Gunner’s Mate Seaman M_ A. C_, to give false information to law enforcement officials conducting the investigation.
	Award:  Forfeiture of $734.00 pay per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

021010:	Summary Court-Martial
Charge I:  violation of UCMJ, Article 90:  Having received a lawful command from Major D_ M_, USAF, on active duty, his Superior Commissioned Officer, then known by the said Aviation Ordnanceman Third Class F_ (Applicant) to be his Superior Commissioned Officer, to not speak with anyone about an ongoing investigation into an assault upon Airman F_ D. M_, or words to that effect, did at U.S. Navy Support Facility Diego Garcia, from about 021006 to about 021009, willfully disobey the same;
Charge II:  violation of UCMJ Article 107: Did, at U.S. Navy Support Facility Diego Garcia, on or about 021006, with intent to deceive, make to Master-at-Arms First Class J_ H. B_ II, USN, on active duty, an official statement, to wit: “that he did not know anything about an assault upon Airman F_ D. M_”, or words to that effect, which statement was totally false, and was then know by the said Aviation Ordnanceman Third Class F_ to be false;
Charge III:  violation of UCMJ, Article 134: Did, at U.S. Navy Support Facility Diego Garcia, on or about 021006, wrongfully endeavor to impede an investigation into an assault upon Airman F_ D. M_, by advising Yeoman Third Class T_ D. M_, Yeoman Third Class R_ D. P_, and Gunner’s Mate Seaman M_ A. C_, to give false information to law enforcement officials conducting the investigation.
Finding:  To Charge I and Charge II: guilty; to Charge III: not guilty.
	Sentence:  Forfeiture of one-half month's pay for 2 months, restriction for 60 days, reduction to E-1.
	CA action:  Sentence approved and ordered executed.

021016:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  Applicant further advised that the least favorable characterization of service he may receive is under other than honorable conditions.

021016:  	Applicant advised of his rights and having elected not to consult with qualified counsel, waive all rights.

021122:	Commanding Officer, Naval Support Facility Diego Garcia recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  "This package submitted with my strongest recommendation that AOAR F_ be separated from the U.S. Navy with an other than honorable discharge immediately.  AOAR F_ had been onboard NSF DG less than a month on the evening of 4 October 2002 when an incident occurred at the Brit Club, which subsequently lead to charges being brought against him.  One of AOAR F_’s friends, GMSR C_, assaulted an individual at the club that evening.  The following day, AOAR F_ was contacted by a joint service investigative team who were trying to determine who was involved in the assault. During the interview, AOAR F_ repeatedly denied knowing anything about the assault or who was involved in it.  After being interviewed, AOAR F_ was given a direct order by MAJ M_, not to discuss the investigation with anyone.  After being returned to his BEQ by NSF Security, AOAR F_ immediately went to his friends and told them that he had been picked up and questioned by Security and that they needed to stop discussing the assault that occurred at the Brit Club.  AOAR F_ conspired to obstruct an investigation which led to numerous extra hours being spent by both U.S. Air Force and NSF Security personnel.  He blatantly disregarded the order of the Major and encouraged his friends to break the law as well.  
AOAR F_ exhibits no remorse for his actions and readily states that he has no desire to remain on active duty.  During his short stay on the island he has been involved in two serious incidents that threatened the safety and welfare of the sailors on Diego Garcia.  There is no place in our community for an individual such as AOAR F_ who preys on his fellow shipmates, blatantly disregards the law, and refuses to take any personal responsibility for his actions."

021126:	Commander, U.S. Naval Forces Japan authorized 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 20021204 under other than honorable conditions for misconduct due to commission of a serious offense (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B, C, and D).

The Applicant contends that his discharge was a penalty that was disproportionate to the offense for which he was court-martialed, especially when he had no knowledge of the incident for which charges were preferred.  The Applicant is advised that the Board, in the absence of contradictory evidence, considered the findings of the summary court-martial of 20021010 to be fact.  His command's decision to separate him is therefore substantiated by the Applicant's violation of Articles 90 Willfully disobeying a superior commissioned officer and 107 Making false official statements.  The Applicant is further advised that his administrative separation from the Naval service was not part of the punishment imposed at his court-martial.  In fact, the decision to administratively separate a service member is always made independently of the findings of a summary court-martial.  Per regulation, separation processing of a service member for misconduct due to the commission of a serious offense may be initiated when the offense warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial for the same or closely related offense.  Accordingly, relief on this basis is denied.

The Applicant contends that his discharge was inequitable as he had only one infraction on an otherwise flawless service record.  The NDRB advises the Applicant that, despite a service member’s prior record of service, serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  The Applicant's misconduct is documented in his service record, which is marred by a conviction at a summary court-martial, as stated above.  This misconduct substantiates the reason for the Applicant's separation as well as his characterization of service under other than honorable conditions.  No other narrative reason for separation or characterization could, at the time, more clearly describe why the Applicant was discharged.  Relief on this basis is denied.

The Applicant contends that his discharge was unjust as he was awarded nonjudicial punishment (NJP) and then convicted at a summary court-martial, on the same day, for the same offenses.  The Applicant is advised that this action is allowable under Part V of the Manual for Courts-Martial, which states that nonjudicial punishment for an offense, other than a minor offense, is not a bar to trial by court-martial for the same offense.  Part V of the MCM goes on to state, however, that the accused may show at trial that NJP was imposed, and if the accused does so, this fact must be considered in determining an appropriate sentence.  In determining the equity of the Applicant's discharge, the Board thoroughly reviewed the Applicant's service records as well as the documentary evidence he submitted and found that:
o	the Applicant was awarded NJP on 20021010 for violating UCMJ Articles 90 Willfully disobeying a superior commissioned officer, 107 Making false official statements, and 134 Obstructing justice;
o	later that same day, the Applicant was convicted at a summary court-martial for the same violations of UCMJ Articles 90 and 107 (being found innocent of the charges under Article 134);
o	since the summary court-martial was conducted within hours of NJP, the Applicant's command was fully aware of the sentence imposed at that NJP;
o	the sentences imposed at each proceeding were nearly identical, i.e., forfeiture of one-half-month's pay for two months, restriction for 60 days, and reduction in rank (one pay grade at NJP and two pay grades at summary court-martial);
o	there is no mention of the summary court-martial proceedings in the recommenda-tion for administrative separation from the Applicant's command to the separation authority (Commander, U.S. Naval Forces, Japan);
o	there is no evidence of the summary court-martial proceedings in the Applicant's official service records except for a reference in his Evaluation Report for the period 20020923 to 20021129.
Subsequently, the Board found it highly unusual that the Applicant was sent to nonjudicial punishment and to a court-martial for the same offenses, and even more unusual that it was done on the same day.  Further, the Board doubted that the Applicant's command considered his nonjudicial punishment in determining an appropriate sentence at the summary court-martial as his command punished him twice, in the same manner, for the same offenses.  The Board also found that the lack of reference to the summary court-martial proceedings in his command's recommendation for administrative discharge deprived the separation authority of a key element of the Applicant's service history, thereby affecting the separation authority's decision on his characterization of service.  Based on this documentary evidence, the Board determined that the Applicant's punishment was excessive and his subsequent administrative separation proceedings were inequitable.  Partial relief on this basis is granted.

In granting partial relief, the NDRB considered the Applicant's misconduct, which is clearly documented by the NJP on 20021010 for violations of the UCMJ, as stated above.  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 short of that required for an upgrade to honorable.  As such, the Board determined that a partial upgrade of the Applicant's characterization of service to general (under honorable conditions) is warranted.

The Applicant requests that his rate of Third Class Petty Officer be restored and that he be allowed to reenlist in the U.S. Navy.  The Applicant is advised that the NDRB has no jurisdiction over reenlistment into the Navy or restoration of rate.  An unfavorable characterization of service and/or reenlistment code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can restore rate or make changes to reenlistment codes.

The Applicant is advised that here is no law or regulation which provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Naval service.  The NDRB is authorized to consider 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.  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 any documentation of a post-service nature 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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation either of the following Articles of the Uniform Code of Military Justice if adjudged at a Special or General Court Martial:  90 Willfully disobeying a superior commissioned officer; 107 Making false official statements.

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