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

ex-SR, USN
Docket No. ND99-00036

Applicant’s Request

The application for discharge review, received 981005, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT – Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE) This former member avers that his UOTHC discharge is unjust because the primary basis of his separation, VUCMJ Art. 128, Assault, was the result of defending himself from provoked confrontations, based on racism, and not his own willful misconduct.

2.  (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920602 - 920609	COG

Period of Service Under Review:

Date of Enlistment:  920610		Date of Discharge:  940204

Length of Service (years, months, days):

	Active:    01  07  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.10 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Pattern of Misconduct, authority:  NAVMILPERSMAN,  Article 3630600.

Chronological Listing of Significant Service Events:

921023:	Drunk and disorderly.  (Extracted from report and disposition of offenses dated 24 May 93.)

930101:	Exhibitionism.  (Extracted from report and disposition of offenses dated 24 May 93.)

930407:	Service under false pretenses (cable TV).  (Extracted from report and disposition of offenses dated 24 May 93.)

930528:	NJP for violation of UCMJ, Article 95:  Resisting apprehension on 1 May 1993, violation of UCMJ Article 128: Assault on 1 May 1993; violation of UCMJ Article 134:  Communicating a threat on 1 May 1993.
	Award:  Forfeiture of $457 per month for 1 month, restriction for 10 days, reduction to SR.  Reduction suspended for 6 months.  No indication of appeal in the record.

UNDATED:	Retention Warning from [Naval Air Station, Adak, Alaska]:  Advised of deficiency (resisting apprehension and assault as evidenced by your admission of guilt to violations of the UCMJ, Arts. 95 and 128 of 28 May 1993), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930701:	Vacate suspended reduction to SR awarded at NJP dated 28May93 due to continued misconduct.

930701:	NJP for violation of UCMJ, Article 128:  Assault on 3 Jun 93.
	Award:  Oral admonition.  No indication of appeal in the record.

930701:	Retention Warning from [Naval Air Station, Adak, Alaska]:  Advised of deficiency (the inability to control your temper as evidenced by your NJP for violation of the UCMJ, Art 128 (assault) of 1 Jul 1993 and the counseling given at that time by the Commanding Officer, Naval Air Station, Adak), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 	

931129:	Applicant afforded opportunity to attend Level II treatment for alcohol rehabilitation.  Applicant declined treatment.

931209:	NJP for violation of UCMJ, Article 92:  Failure to obey an order, violation of UCMJ Article 128 (3 specs): Assault.
	Award:  Forfeiture of $203 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

931221:	Commanding Officer, Transient Personnel Unit, Puget Sound notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offense, a pattern of misconduct, minor disciplinary infractions and alcohol abuse rehabilitation failure as evidenced by NJP's of 28 May 1993 and 9 December 1993, 1 July 1993 and page 13 dated 29 November 1993.

931223:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

931227:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses, a pattern of misconduct, minor disciplinary infractions and alcohol abuse rehabilitation failure.  Commanding officer’s comments (verbatim):   SN (applicant) transferred to Transient Personnel Unit Puget Sound for separation following his latest Captain's Mast.  While in Adak, he had an administrative Board, whose recommendation was separation with a general discharge.  Before the discharge could be effected, he got into more trouble, was taken to mast and was informed that the recommendation from the Admin Board would be held in abeyance pending re-notification for his additional offenses.  When he was re-notified, he declined a board, fully aware that his discharge would be reconsidered and that an other than honorable discharge could be assigned.  SN (applicant) does not have a good track record.  He has been counseled and warned a number of times that his behavior was unacceptable.  Apparently he took little heed of these warnings.  Based on a review of the record, I recommend that his discharge be characterized as other than honorable.

940125:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 940204 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s representative submitted the following as issue 1:  (EQUITY ISSUE) This former member avers that his UOTHC discharge is unjust because the primary reason for his separation was the result of defending himself from provoked confrontations, based on racism, and not his own misconduct.  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The applicant’s representative submitted the following as issue 2:  (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant did not provide any letters of recommendation from his employer as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023