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

FOR OFFICIAL USE ONLY

ex-HT2, USN
Docket No. ND06-00838

Applicant’s Request

The application for discharge review was received on 20060609.  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 20070329.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 901018 UNTIL 941201.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Administrative Board recommended suspension of discharge.
	 Characterization of service not warranted by overall service record.
	 Post-service conduct mitigates characterization of service.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)
Twelve pages from Applicant’s service record
Character Reference ltr from S_ T. D_, dated September 10, 1997
Character Reference ltr from D_ G. M_, dated October 7, 1997
Letter from J_ R. A_, dated September 29, 1997
Letter from R_ E. W_, Jr., dated May 10, 1997
Letter from H_ C. M_, undated
Letter from S. J. P_, dated February 4, 1997
Character Reference ltr from L_ O. M_, Chief of Police, China Lake Police Department, dated May 15, 2006
Character Reference ltr from B_ T_, V.P. Cumming Construction Company, Inc., dated September 5, 1996
Character Reference ltr from G_ C_, dated September 19, 2006
Character Reference ltr from CWO L_ R. B_, Sr., retired, undated
Character Reference ltr from L_ M_, dated August 27, 2006
Character Reference ltr from P_ L_, dated August 22, 2006
Applicant’s service record on a CD

PART II - SUMMARY OF SERVICE

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

	Inactive:  None indicated in record
	Active:    USN	19901018 - 19941201	HON

Period of Service Under Review:

Date of Enlistment:  19941202		Date of Discharge:  19970415

Length of Service (years, months, days):

	Active:    02  04  14
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  34

Years Contracted:  5

Education Level:  14				AFQT:  62

Highest Rate:  HT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  1.7 (3)		OTA:  1.76

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Achievement Medal, First Good Conduct Medal for period ending Oct94, National Defense Service Medal, Navy and Marine Corps Overseas Ribbon (2nd award), Expert .45 Cal Pistol

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

941202:	Reenlisted this date for a term of 5 years.

950717:	Incident report: Applicant place under military apprehension by Security Department, U.S. Naval Activities, Guam, for communicating a threat toward MMFN C_.

960523:	Officer in Charge, Explosive Ordinance Disposal Mobile Unit FIVE, Detachment FIVE ONE, issued Applicant a Letter of Instruction to document deficiencies in Applicant’s performance.  Specific noted deficiencies: inability to manage your personal finances, poor attitude towards authority and regulations, questioning the orders of your seniors in a public environment, lack of support for command policies and Navy regulations, disrespectful statements towards your seniors, unauthorized absence, violation of uniform regulations.  Applicant directed to comply with specific corrective measures and warned that failure to comply with the corrective measures will be dealt with punitively.  Applicant advised that his outstanding work ethic did not compensate for his attitude.

960620:	Counseling:  Advised of deficiency (Wearing ear ring on U.S. Navy property and refusing to remove it after being told to by a Senior Chief Petty Officer.), notified of corrective actions and assistance available.

960910:	Counseling:  Advised of deficiency (Violation of UCMJ Article 92: Failure to obey a lawful order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	[NDRB note:  refers to misuse of command duty vehicle on 960815 by using it to go to Subway to eat and to go off-base to pay phone bill.] 

961007:	Counseling:  Advised of deficiency (failure to be at place of duty on 961002 and 961007), notified of corrective actions and assistance available.

961020:	Applicant apprehended by Guam police for alleged driving under the influence of alcohol.

961114:	Applicant’s driving privileges revoked for a period of 1 year on all DoD installations.

961127:	Applicant apprehended on Saipan for alleged assault consummated by battery on Airman B_ by hitting her four times on the arm during an argument.

961204:	NJP for violation of UCMJ, Article 111: On or about 961020, while operating a passenger car, drunk, as shown by a Guam Police Department field sobriety test, did in a reckless manner, cause said vehicle to strike another passenger car.
	Award:  Forfeiture of $821.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

961205:	Retention Warning:  Advised of deficiency (Article 111: Drunken and reckless driving.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970202:	Captain G_ B. K_, USAF, confirmed in writing to Applicant’s OIC that Airman B_ had reported bruise on upper arm to Captain K_ upon Airman B_’s return from Saipan, and that Captain K_ had observed the bruise.  

970212:	Applicant notified of consideration for discharge by reason of misconduct - commission of a serious offense and minor disciplinary infractions as evidenced by CO’s NJP 961205 for violation of UCMJ Article 111 and as evidenced by Airman B_’s statement on 961203.  Applicant notified that least favorable characterization of service possible was as under other than honorable conditions.

Not dated:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

970218:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense - drunk and reckless driving, that such misconduct warranted separation, recommended characterization of service as under other than honorable conditions and that such discharge should be suspended for 12 months.  By a unanimous vote, found that misconduct due to commission of a serious offense - assault consummated by a battery – was not supported by the evidence.
	[NDRB note:  the basis for discharge, misconduct due to minor disciplinary infractions, of which the Applicant had been notified was dismissed at the opening of the Administrative Discharge Board and not considered by it.]

970224:	Applicant’s Counsel submitted Letter of Deficiency.

Not dated:	Commanding Officer, Explosive Ordnance Disposal Mobile Unit FIVE, recommended the Applicant be discharged by reason of commission of a serious offense, Article 111 Drunk and reckless driving.  Commanding Officer’s comments:  “I recommend HT2 G_ (Applicant) be separated from the Navy.  He has demonstrated a lack of military bearing and an unwillingness to follow Navy regulations…found guilty at Captain’s Mast of Driving under the Influence of alcohol.  Additionally, although not brought to Mast for a charge of assault against a female USAF E-3, there is sufficient information to conclude that HT2 G_ did not conduct himself in a manner that would be considered acceptable social behavior.  An additional disciplinary infraction occurred within six months of the Article 111 offense in that HT2 G_ went before XOI for improper use of a Government vehicle ie, using it for personal use…I myself agree that Petty Officer G_ is a hard worker.  However, this characteristic alone does not make a sailor a truly valuable asset to the command.  It is my belief that Petty Officer G_ has difficulty with authority figures and his egotistic mannerisms are contrary to fostering a Team effort.  He has stated to me that he believes he is a member of an elite community (EOD) and therefore rules and policies that apply to the Fleet are not his concern....”

970318:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970415 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant was properly notified of the proposed administrative separation.  He fully exercised those rights during administrative processing, to include successfully demonstrating to his Administrative Board that one of the proposed bases for discharge was not sufficiently supported by the evidence.  The Administrative Board recommended that his discharge be suspended; however, such recommendations are not binding upon the Separation Authority.  The evidence submitted by Applicant indicating that the Administrative Board did not intend that he be separated does not overcome the presumption that the Administrative Board and the Separation Authority acted properly in exercising their respective duties to recommend and decide on an appropriate disposition of his case.  The NDRB concluded that the evidence of record fully supported the conclusion that the Applicant had committed a serious offense and that he willfully refused to comport his behavior to identified Navy standards despite numerous corrective guidance and instructions from superiors, thus warranting separation.  Regarding characterization of service, when the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than 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.  The NDRB advises the Applicant that possessing above average work and technical skills, while certainly desired in Sailors, does not compensate for a below average record of misbehavior and a self-centered attitude.  The Applicant’s period of service under review was marred by numerous informal counselings for a variety of violations of the UCMJ, a retention warning, three incidents of involvement with civil or military authorities resulting in arrest or apprehension, and a nonjudicial punishment proceeding for violation of Articles 111 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 111 is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  The Board has no authority to award or assign specialty ratings or qualifications, nor the authority to upgrade a discharge for the sole purpose of restoring such ratings or qualifications.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  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 any claims of post-service accomplishments or any additional evidence related to this 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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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 or reckless operation of vehicle, aircraft, or vessel.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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