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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00571

Applicant’s Request

The application for discharge review was received on 20060322.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061214.  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 - ISSUES AND DOCUMENTATION

Decisional Issues:

Propriety/Equity: Command misconduct

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Excerpts from Service Record (13 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990325 - 19990608	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990609		Date of Discharge:  20010516

Length of Service (years, months, days):

	Active:    01  11  08  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  68

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1) 		Behavior:  3.0 (1) 			OTA:  3.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Sea Service Deployment Ribbon.

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

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

Chronological Listing of Significant Service Events: 

001105:	Patient presented with being instructed to report following altercation/episode with MAA with a full night of “interrogation” regarding possible drug use.  Pt admits being kept awake all night & then desiring to recant a signed statement he felt was incorrect.  He ripped it up & ate the statement admitting it was wrong.
	O: Logical coherent speech, well dressed & appropriate.  Stable word/affect.
	A: No obvious signs of any mental health issues.
P: Pt released.

001108:	Record of Enlisted Counseling concerning performance and personal behavior: On the 7th Nov AN O_ (Applicant) was UA from his workcenter several times.  On the 8TH Nov he was warned of his actions, and was given a task to do, ten minutes later he was UA again, task was uncompleted.

001129:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, in that Airman Apprentice C_ O_ (Applicant), having knowledge of a lawful order issued by Commanding Officer, USS GEORGE WASHINGTON, on or about 001105, fail to obey the same by wrongfully causing himself to be locked in 4-128 Universal Weapons Magazine with AO3 A_ B_, U.S. Navy.
Violation of UCMJ, Article 134: Obstructing Justice, in that Airman Apprentice C_ O_, U.S. Navy, on or about 001106, wrongfully impede an investigation, in the case of U.S. vs AA C_NMN O_, U.S. Navy, by destroying is sworn statement.
	Violation of UCMJ, Article 107: False Official Statement, in that Airman Apprentice C_ O_, on or about 001128, with intent to deceive, make to the Executive Officer, USS GEORGE WASHINGTON, an official statement, to wit: “I was not offered any drugs by Aviation Ordnanceman Third Class D_.  I did not see or hear about any drug use”.
Violation of UCMJ, Article 92: Dereliction of Duty, in that Airman Apprentice C_ O_, on or about 001103, was derelict in the performance of those duties by wrongfully failing to report a violation of the UCMJ Article 112a.
Award:  Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

001130:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offense.

001130:	Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

001202:	Applicant has been decertified/disqualified from the Explosive Handling Personnel Qualification and Certification Program for cause.

010305:	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, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

010416:	Commanding Officer, USS GEORGE WASHINGTON (CVN 73), recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by his Commanding Officer’s Nonjudicial Punishment held on 001129, for violation of UCMJ, Article 92 (2 specifications), Failure to obey a lawful order on or about 001105, Failure to obey a lawful general regulation between on or about 001030, and on or about 001103, Article 107, False Official Statement on or about 001128; and Article 134, Obstructing justice on or about 001106.  Commanding Officer’s comments:  “Airman Recruit O_’s (Applicant) continued presence is detrimental to morale and good order in this command.  His offenses involved false official statements regarding the use and distribution of the drug “Ecstacy” and his failure to report the same, his attempt to hold a “private conversation” by having himself locked in a magazine with a female petty officer who was also the subject of an investigation, and the destruction of his statement regarding the drug investigation by attempted ingestion.  He has no potential for continued service, therefore, I concur with the Administrative Board and recommend that Airman Recruit O_ be separated from the Naval service with an Other than Honorable discharge.”

010508:	GCMCA, Commander, Cruiser Destroyer Group TWO, directed the Applicant's discharge under other than honorable conditions discharge by reason of commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010516 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).

Propriety/Equity – Command misconduct: The Applicant contends that his handwritten statement was “torn to pieces and thrashed by security’s MA” and that ”obstruction of justice was falsely added.”

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.

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 under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his NJP on 20001129.  The Applicant was awarded NJP for violations of UCMJ Article 92 Failure to obey a lawful order and Dereliction of duty; Article 134 Obstructing justice; and Article 107 False official statement.  The record further reveals that the Applicant was properly notified of separation by reason of misconduct due to commission of a serious offense on 20001135 with a least favorable characterization of under other than honorable conditions.  On 20010416, the Commanding Officer, USS GEORGE WASHINGTON, concurred with a properly convened administrative board and recommended to Commander, Cruiser Destroyer Group TWO, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.  On 20010508, the Commander, Cruiser Destroyer Group TWO, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial 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 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 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 violation of the UCMJ, Article 92 Failure to obey order, regulation; Article 107 False official statement; and Article 134 Obstructing justice.

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