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

FOR OFFICIAL USE ONLY

 ex-MM3, USN
Docket No. ND05-01096

Applicant’s Request

The application for discharge review was received on 20050613.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060216.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated attached documents: 

“Complaint:

Summary: On 5-6 Jan 2005, an administrative discharge board convened by Commanding Officer, Naval Support Activity, Naples, Italy was held in my case.  The board was convened per authority of the Military Personnel Manual (MILPERSMAN) promulgated by the Chief of Naval Personnel.  The procedures set forth in Section 1910 of the MILPERSMAN regarding notification of the basis or reason for processing are:

a.  inherently vague;

b.  do not meet the requirements of constitutional due process;

c.  prevented the board in my case from adhering to prescribed procedures.

Moreover, the board in my case as well as Commanding Officer, Naval Support Activity, Naples relied upon those defective procedures in convening a board and reaching a finding of misconduct and a decision to separate me from the naval service.

I have complained about these defective procedures in a Letter of Deficiencies provided to the Convening Authority of my board on 6 January 2005. (Enclosure 1)

Background: On 1 August 2004, I was involved in a car accident in Naples, Italy.  Two Italian nationals were killed in the collision.  Per the Status of Forces Agreement between the United States and Italy, the Italian government has primary jurisdiction to try me for offenses relating to the accident.  To this date, the Italian government has neither tried me nor waived their jurisdiction to try me.  I have not received non-judicial punishment from military authorities, nor have I been tried by court-martial for offenses relating to this accident.

On 17 December 2004, I was notified by Commanding Officer, Naval Support Activity, Naples that I am being considered for administrative separation due to “Misconduct - Commission of a Serious Offense” per MILPERSMAN 1910-142. (Enclosure 2)

On 30 December 2004, my counsel requested clarification from the Commanding Officer, Naval Support Activity, Naples of the specific allegations and facts that I am supposed to defense myself against. (Enclosure 3)

In response, the Commanding Officer on 3 January 2005 advised me that I am being processed for administrative separation for “Misconduct-Commission of Serious Offense as evidenced by the police report received from Carabinieri for an automobile accident that occurred on 4 August 2004, involving the deaths of two local nationals while he was under the influence of alcohol.” (Enclosure 4)

At my administrative board, the senior member acknowledged receiving the 3 January 2005 advisement of the Commanding Officer and stated that this would be used as guidance in the board’s determinations.

On 6 January 2005, the board concluded its deliberations and found 3-0 that the preponderance of the evidence supports reason (1) 1910-142.  The board report states that “Specific evidence considered relating to acts, omissions, or circumstances alleged in the letter of Notification includes: testimony of all witnesses, exhibits presented which related to BAC level and exhibits presented which related to the responsiveness of the respondent.” (Enclosure 5)
By a vote of 2-1 the board voted to recommend separation for reason (1) 1910-142, and by a vote of 3-0 the board voted to recommend a General Discharge and transfer to the Individual Ready Reserve.

On 6 January 2005, my counsel submitted a Letter of Deficiencies which includes discussion of the subject matter of this grievance. (Enclosure 1)

On 7 January 2005, Commanding Officer, Naval Support Activity Naples notified Commander Navy Personnel Command (PERS 832) that I was processed for “Misconduct due to - Commission of a Serious Offense”, that I committed no military or civilian offenses or that there is no requirement to identify them, and that I should be separated from the naval service.  (Enclosure 6) Not once does this letter make reference to any wrongful act or offense that I am suspected of committing or give any indication of the specific reason why I am being forced out of the Navy.

I have been notified that on 7 January 2005, I will be flown to Norfolk, VA and will immediately thereafter be separated from the naval service due to misconduct.  As a veteran with over eight years of active naval service, I will be denied involuntary separation pay which would amount to well over $20,000.00 per SECNAVINST 1900.7G because my separation is due to “misconduct.”

Nature of Wrong: the procedure established by Chief of Naval Personnel and used to notify me of possible administrative separation was inherently vague, did not meet the requirements of constitutional due process, and prevented the board in my case from adhering to prescribed procedures; and, the board in my case as well as Commanding Officer, Naval Support Activity, Naples relied upon those defective procedures in convening a board and reaching a finding of misconduct and a decision to separate me from the naval service.

The cover letter to the MILPERSMAN, signed on 22 Aug 2002 by the Deputy Chief of Naval Personnel establishes that the MILPERSMAN contains “policy, rules, and practices for administration of military personnel within Navy.” (Enclosure 7) In this case, the defective procedures found in the MILPERSMAN as promulgated by the Chief of Naval Personnel were the source of the wrong I have suffered.

MILPERSMAN 1910-142 states that “(m)embers may be separated based on commission of a serious military or civilian offense when (1) specific circumstances of offense warrant separation; and (2) offense would warrant a punitive discharge per MCM, appendix 12 for same or closely related offense.” (Enclosure 8) This means that facts will be applied to offenses listed in the MCM, and, if the offense would warrant a punitive discharge, it may be characterized as a “serious offense.” Offenses in the MCM are defined by their elements, and the specific elements are vital in consideration of whether the offense exists.  Conduct that does not meet all required elements of a listed offense is not an offense.

MILPERSMAN 1910-212 provides that the following factors should be considered on the issue of retention or separation: (a) the seriousness of the offense; (b) the likelihood of recurrence; (c) member’s potential for further service; (d) member’s military record.  Enclosure 9)  This contemplates that the board will actually deliberate on the specific offenses and their relative degree of seriousness, as well as the likelihood that the offense(s) will recur, and only after a deliberate process including these factors, will the board vote on the issue of retention or separation.

The script prescribed by Chief of Naval Personnel at MILPERSMAN 1910-516 and used in my case provides in pertinent part: “(t)his board has been convened for the purpose of considering the pertinent facts relating to the case .  ..  The board will make findings of fact for each reason and will make a recommendation with respect to final action of retention ...“ (Enclosure 10) This contemplates the board will be directed to consider pertinent facts set forth in advance, that it will make findings based on specific facts, and as discussed above, only those findings that substantiate one or more specific offenses will be considered on retention or separation.

The worksheet prescribed by Chief of Naval Personnel at MILPERSMAN 1910-516 and used in my case requires the board to list specific evidence considered “relating to acts, omissions, or circumstances alleged in the Letter of Notification.” (Enclosure 11) This clearly states that the Letter of Notification is supposed to allege acts, omissions or circumstances, as this would have put me on notice of the specific factual basis for the board.  The Letter of Notification in my case listed no such facts - and it did not even list an offense.  It merely alleged that I committed a “serious offense.” Moreover, in my case, a cursory statement by the board that it considered all testimony, exhibits relating to BAC, and exhibits relating to my responsiveness fails to list “specific evidence.”

Rule for Court-Martial 307 (MCM United States, 2002 Edition) establishes that a charge and specification format is used to allege offenses, and defines a specification as a plain, concise, and definite statement of the essential facts constituting the offense charged.  The Discussion section to this rule sets forth the principle that a specification should not allege more than one offense.  This reflects the bedrock principal of American jurisprudence that due process involves, among other rights, prior notice.

Paragraph 4(a) (2) of Part V of the Manual for Courts - Martial sets forth the requirement that “a statement describing the alleged offenses - including the article of the code - which the member is alleged to have committed” be provided in a notification prior to the imposition of non-judicial punishment upon a servicemember.  This demonstrates that even members who are receiving non-judicial punishment which does not involve the serious lost of employment and lifetime stigma of an adverse separation from the naval service (as well as collateral consequences to include the loss of tens of thousands of dollars in separation pay) are entitled to notified in advance of the specific offense in the UCMJ that they have allegedly committed and the facts that support that offense.  In is inconceivable that less protection or due process should be afforded persons facing potential administrative separation under Other Than Honorable conditions.

The failure of an agency to follow its established procedures or regulations can constitute a denial of procedural due process.  Miller v. Henman, 804 F.2d 421, 424 (7th Cir.  1986).  In this case, the Chief of Naval Personnel permitted the Convening Authority to provide me with inadequate notification.  I affirmatively sought greater specificity and received a generalized reference to a police investigation that still failed to list specific offenses and factual predicates.  The board procedures set forth by Chief of Naval Personnel then allowed the board members to vote on a “reason” (i.e. serious offense) without setting forth the specific offense or facts supporting it.

I was notified that I was being considered for administrative separation due to commission of a serious offense.  The letter of clarification from the Convening Authority said I was being considered for separation due to commission of a serious offense as evidenced by the police report received for an automobile accident that occurred on 4 August 2004 (an incorrect date - the accident occurred on 1 August 2004) involving two deaths and driving under the influence of alcohol.  There was evidence and argument at my board that I allegedly committed a number of offenses including Article 119 (manslaughter - two specifications), Article 111 (drunk driving), Article 134 (negligent homicide - two specifications).  At no time and nowhere will you find a clear and explicit statement of the offenses I allegedly committed and the pertinent facts that establish those offenses.

I do not know what the members voted on.  I do not know if member #1 voted on Article 111 alone, Article 119 for victim #1 or victim #2 or both, Article 134 for victim #1 or victim #2 or both, Article 111 reckless driving, or some combination of all of these or something else entirely.  And as for members #2 and #3 ...  the lack of clarity is increased exponentially.

Under the defective procedures permitted by the Chief of Naval Personnel, the individual members may have voted on parts of offenses in the MCM but not entire offenses and their elements, they may have each voted on different offenses and there was actually not a majority vote on any single offense, or they may have been confused due to the defective procedures and simply found that I committed a generalized moral wrong that is not an offense under the UCMJ and that does not warrant a punitive discharge.  There is no way to know.  And the procedures as set forth in the MILPERSMAN do not provide any systemic guarantees that such a process, utterly lacking in respect for the notion of due process, did not occur in my case.

Relief Requested: I request:

1.  a new Administrative Board under procedures that guarantee me due process;

2.  in the alternative, I request that my board be voided and I be given a discharge at my EAOS as warranted by my service record under Honorable Conditions;

3.  involuntary separation pay.

Enclosures:
(1) Letter of Deficiencies (w/enclosures) of 6 Jan 05
(2) Notification Letter of 17 Dec 04
(3) Counsel letter of 30 Dec 04
(4) NSA Naples letter 5800 Ser N01J/1 of 3 Jan 05
(5) Board worksheet of 6 Jan 05
(6) NSA Naples letter 1910 Ser NO1J/20 of 7 Jan 05
(7) MILPERSMAN Cover Letter of 22 Aug 02
(8) MPM 1910-142
(9) MPM 1910-212
(10) MPM 1910-516 (script excerpt)

I CERTIFY THAT THE ABOVE INFORMATION IS TRUE AND CORRECT TO
THE BEST OF MY KNOWLEDGE, AND THIS COMPLAINT IS SUBMITTED
PER THE GUIDELINES AND PROCEDURAL REQUIREMENTS OF CHAPTER III, MANUAL OF THE JUDGE ADVOCATE GENERAL.

[signed]
J_ E_(Applicant)
MM3, USN
DATE: 07 JAN 05”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
One hundred and fifty pages from Applicant’s service record
General Public Prosecutor’s Office of the Italian Republic Court of Appeal of Naples Criminal Affairs Division, dtd December 17, 2004 (2 copies)
USSOINST 5820.1D, pages 10 and 11 (2 copies)
State Police, Street Police Division letter, undtd (2 copies)
Applicant’s high school diploma
Applicant’s social security card
Statement from Applicant, undtd
Evaluation Report and Counseling Record, dtd June 14, 2001
Evaluation Report and Counseling Record, dtd June 12, 2002
Evaluation Report and Counseling Record, dtd September 27, 2002
Evaluation Report and Counseling Record, dtd June 22, 2004
Evaluation Report and Counseling Record, dtd September 24, 2004
Letter from Applicant’s Defense Counsel, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19960620 - 19961111	COG
	Active:   USN 	19961112 - 20000129	HON

Period of Service Under Review:

Date of Enlistment:  20000130		Date of Discharge:  20050128

Length of Service (years, months, days):

	Active:    04  11  29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  22

Years Contracted:  5

Education Level:  12				AFQT:  43

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (5)*			Behavior:  3.40 (5)*		OTA:  3.14*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal/Navy Unit Commendation/Navy “E” Ribbon 3/Overseas Service Ribbon 2/Flag Letter of Commendation/Meritorious Unit Commendation/Sea Service Ribbon 2/Armed Forces Expeditionary Medal/Armed Forces Service Medal

*Extracted from supporting documents submitted by the Applicant.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

000130:	Reenlisted this date for a term of 5 years.

040616:	NAVPERS 1070/613 counseling:  Advised of deficiency (Failure to meet physical readiness test standards.  Failed run on 040429.), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

040801:	Applicant involved in a car accident in Naples, Italy where two Italian nationals were killed.

040801:	Cardarelli Hospital, Naples, Italy:  Analysis of Applicant’s blood on this date indicates the presence of alcohol.

041220:	Applicant notified of intended recommendation for discharge by reason of misconduct-commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

041220:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

041230:	Applicant, through counsel, requests from Commanding Officer, U.S. Naval Support Activity, Naples, Italy, immediate and formal advance notice of the specific allegation(s) against which he has to defend.  Additionally, Applicant requests the Commanding Officer provide formal definitions of the allegations to the board members to avoid confusion.

050103:	Commanding Officer, U.S. Naval Support Activity, Naples, Italy, informed the Applicant that he was being processed for administrative separation for misconduct-commission of a serious offense as evidenced by the police report received from Carabinieri for an automobile accident that occurred on 040804, involving the deaths of two local nationals while he was under the influence of alcohol.

050106:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, and by a vote of 2 to 1 that such misconduct warranted separation, and by unanimous vote recommended discharge with a general (under honorable conditions) and transfer to the IRR.

050106:	Letter of Deficiency:  Applicant, through counsel, submitted a letter of deficiency concerning the Applicant’s administrative discharge board.

050107:	Commanding Officer, U.S. Naval Support Activity, Naples, Italy directed discharge with a general (under honorable conditions) by reason of misconduct-commission of a serious offense.  Commanding Officer’s comments:  “As per enclosure (2), I have fully considered all matters regarding this case.  I concur with the Board’s findings and recommendations.  MM3 E_(Applicant) is to be discharged from the naval service on the basis of Misconduct-Commission of a Serious Offense with a characterization of service as General (Under Honorable Conditions).

050107:	Article 1150, U.S. Naval Regulations Complaint of Wrongs:  Applicant submitted an Article 1150 Complaint of Wrongs against the Chief of Naval Personnel alleging inherent deficiencies in the Military Personnel Manual.

050126:	Commanding Officer, U.S. Naval Support Activity, Naples, Italy forwarded Applicant’s Article 1150 Complaint of Wrongs to Chief of Naval Personnel.  Commanding Officer indicated that all guidelines and procedures promulgated by MILPERSMAN 1910 series were complied within their entirety in the Applicant’s case.

050128:	DD Form 214:  Applicant discharged with a 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 20050128 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  The record reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to commission of a serious offense on 20041220 with a least favorable characterization of under other than honorable conditions.  On the same day, the Applicant elected to appear before an administrative discharge board.  On 20041230, the Applicant submitted a request for the specific allegation for which he had to defend and a request to provide formal definitions of the allegations to the Board members.  On 20050103, the Commanding Officer, U.S. Naval Support Activity, Naples, Italy, informed the Applicant that he was being processed for separation by reason of misconduct due to the commission of a serious offense as evidenced by the police report received from Carabinieri for an automobile accident that occurred on 20040804 involving the deaths of two local nationals while he was under the influence of alcohol.  On 20050106 the administrative discharge board unanimously found that a preponderance of the evidence supported the Applicant’s misconduct and, by a 2 to 1 vote, recommended separation.  The Board unanimously recommended that separation be with a general (under honorable conditions).  On 20050107, the Commanding Officer, U.S. Naval Support Activity, Naples, Italy, directed the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

The Applicant contends that the procedures set forth in Section 1910 of the MILPERSMAN regarding notification of the basis or reason for processing are inherently vague, do not meet the requirements of due process, and prevented the Board in my case from adhering to prescribed procedures.  The Applicant’s contentions are without merit.  The NDRB’s jurisdiction is limited to a review of the propriety and equity of the Applicant’s discharge.  The Applicant’s contentions that the relevant MILPERSMAN articles are constitutionally deficient do not fall within the review of this Board.  Relief on this issue would be inappropriate.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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.  Although the Applicant was never awarded NJP or convicted at court-martial, his service was marred by a drunk driving incident in which two Italian Nationals were killed.  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 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 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, drunken or reckless operation of vehicle, aircraft, or vessel, Article 119, manslaughter, or Article 134, negligent homicide.

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