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

FOR OFFICIAL USE ONLY

  ex-MSSN, USN
Docket No. ND05-01563

Applicant’s Request

The application for discharge review was received on 20050920.  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 designated Connecticut Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721.  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 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 on the attached document/letter: 

“I T_ M. W_ went in to active duty status at or around April 1995 and received a discharge of other than honorable due to an incident that took place at Naval Air Station Jacksonville, FL.  I was stopped on base on a Friday night for not completely coming to a complete stop at a stop sign.  As a result I was charged with DUI, and failing to come to a complete stop at a stop sign.  My punishment was 30 days restriction, and 30 days extra duty.  I served 21 days of this sentence, and I elected to get out of the Navy.  I was ordered to see the personnel officer who was a machinist mate 1st class, he was not in favor of me as he was rude in telling me after I said I wanted to get out, that he didn’t want me in his Navy ever again.  Feeling traumatic after his verbal and yet constant abuse verbally during that session.  He talked to me for about an hour, I signed my discharge papers a little bit later that after noon, I don’t remember the day.  The discharge was other than honorable.  I stayed in Jacksonville FL. for a period of about six years, a few months later my friends, some of them told me that the Machinists Mate 1st Class was kicked out of the Navy for inappropriate behavior becoming of a 1st class, he had treated several Sailors prior to my discharge and even after in the same rude manner speaking to them in a tone not befitting a 1st Class Petty Officer.  I was also reduced in rank from E-4 –E-3.  I never tried to join again because of the 1st Class Petty officer’s words. 

Documentation

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

Applicant’s DD Form 214 (2)
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19881230 – 19890125		COG
Active:   USN 			19890126 – 19930125		HON
	Inactive: USNR-R		19930126 – 19950305		HON
Inactive:  USNR (DEP)	19950306 – 19950419		COG
	
Period of Service Under Review:

Date of Enlistment:  19950420		Date of Discharge:  19950922

Length of Service (years, months, days):

	Active:    00  05  03  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  24

Years Contracted:  4 

Education Level:  12				AFQT:  38

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon (2nd), Joint Meritorious Unit Commendation.

* Not Applicable

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

950420:	Reenlisted this date for a term of 4 years.

950720:	NJP for violation of UCMJ, Article 111:  Drunken or reckless driving, MS3 W_, did onboard NAS Jacksonville, on 950703, disregard a stop sign and proceed at a high rate of speed while drunk.
Violation of UCMJ, Article 121: Larceny, MS3 W_ onboard NAS Jacksonville did steal a DOD decal, which belong to another military member.
	Award:  Forfeiture of $567.00 pay per month for 1 month, restriction to NAS JAX for 45 days, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

950807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your CO’s NJP on 950720 as documented in your service record.

950807:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

950814:	Commanding Officer, Naval Air Station, Jacksonville, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “As a NAVET, he was thoroughly aware of Navy rules and regulations prior to reentering the service. Based on the seriousness of the offense MSSN W_ (Applicant) has committed, I strongly recommend that he be separated from the naval service with an other than honorable discharge from misconduct due to the commission of a serious offense.”

950912:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950922 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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).

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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 record contains a non-judicial punishment proceeding on 19950720 for violation UCMJ Article 111 (Drunken and reckless driving) and Article 121 (Larceny).  Violation of UCMJ Articles 111 and 121 are serious offenses because 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.  Typically, the characterization of service for members involved in misconduct due to commission of a serious offense is under other than honorable conditions.  The Applicant’s conduct and performance, which forms the primary basis for determining the character of his service, reflect a failure to meet the requirements of his contract with the Navy.  Therefore, the Board found that the Applicant’s service was equitably characterized.  Relief on this basis is denied.

The Applicant contends that his discharge is improper because the personnel officer verbally abused him during the discharge process.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of command misconduct.  In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence.    The Applicant’s statements alone do not provide sufficient basis to grant relief.  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.  The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the 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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 driving and Article 121 Larceny.

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