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

FOR OFFICIAL USE ONLY

 ex-FC3, USN
Docket No. ND05-01302

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable and he requested a personal appearance discharge review before a traveling panel closest to Columbia, South Carolina.  The Applicant did not list a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard and that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  After a thorough review of all available 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 characterization of the 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

Applicant’s issues, as stated on the application: 

“On October 27, 2001, I was arrested by civilian authorities on charges of assault with a deadly weapon.  On November 4, 2001, the prosecutor dismissed the charges.  However, the Navy proceeded with discharge hearings due to this incident.  I did not want to be discharged from the Navy, thus I was appointed a military attorney.  While deployed on the USS Doyle, I learned that the Navy was discharging me.  I submitted several appeals, but they were denied.

As all civilian charges were dismissed, I feel that the military should not have forced this discharge on me.  I had never been in any trouble in the Navy and intended to reinlist to continue serving my country.  I request that this be upgraded to an Honorable discharge.”

Documentation

The Applicant submitted the following documentation for the Board’s consideration in addition to the service and medical record:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19970121 – 19970311		COG
	Active:   USN 			19970312 – 20010308		HON

Period of Service Under Review:

Date of Enlistment:  20010309		Date of Discharge:  20020429

Length of Service (years, months, days):

	Active:    01 01 20  (Does not exclude lost time. Total Service 05 01 17)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  11 days
	Confinement:		  none

Age at Entry:  22

Years Contracted:  6 

Education Level:  12				AFQT:  48

Highest Rate:  FC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  1.0 (1) 		OTA:  1.86 (1) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Expert Ribbon (M16), Expert Ribbon (9MM), Expert Ribbon (M14), Sea Service Deployment Ribbons, Navy Good Conduct Medal, Battle “E” Award, Letter of Commendation, Navy Achievement Medal, ESWS.

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: 

010309:	Reenlisted this date for a term of 6 years.

011027:	Applicant to unauthorized absence at 0700 on 011027.

011107:	Applicant from unauthorized absence at 0700 on 011107 (11 days/returned).

011125:	NJP for violations of the UCMJ, Article 134 (carrying a concealed weapon and discharging a firearm under circumstances to endanger human life), Article 128 (aggravated assault), Article 107 (false official statement), and Article 86 (unauthorized absence, 11 days).
	Award:  Forfeiture of $928 per month for 2 months, reduction to E-4, extra duty and restriction to the limits of USS DOYLE (FFG 39) for 45 days.  No indication of appeal in the record.

020429:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, per MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020429 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

A finding of misconduct due to the commission of a serious offense requires only a showing (by preponderance of the evidence) that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  Applicable 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.  The Applicant’s service was tarnished by nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence, 11 days), Article 107 (false official statement), Article 128 (assault), and Article 134 (carrying a concealed weapon and a second specification for discharging a firearm under circumstances to endanger human life).  Reference (A) defines each violation of Article 107, 128, and 134 as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed the serious offenses.  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.  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  Relief is denied.

The Applicant contends that he should not have been discharged because the civilian prosecutor dismissed similar charges.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention.  The fact documented in the record is the Applicant’s NJP where he was convicted of four specifications which are considered serious offenses, punishable by confinement if adjudicated by courts martial.  In the absence of a complete discharge package, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.  The NDRB found the Applicant's issue without merit.  Relief 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.  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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 each violation of the UCMJ, Articles 134, 128, and 107.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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