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

 ex-SR, USN
Docket No. ND99-01009

Applicant’s Request

The application for discharge review, received 990721, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417.  After a thorough review of the records, supporting documents, 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To Whom It May Concern,
My name is (applicant), I was discharged from the Navy on a under other than honorable discharge.  I understand that is a bad discharge.  But I would like for it to be up graded to an honorable discharge.  I know my actions and attitude was poorly while serving in the Navy.  My reason for the way I performed was because I was going through alot of personal problems back at home and I wanted out to try and correct them also I felt that the division I was working for at my command wasn't right.  They never showed me any concern when I had two tradegies that happened to me.  They didn't want to give me leave to go home when it happened.  The never showed me interest, they would never inform me, of any thing and once they do things I was never informed and once I didn't show up there they wanted to write me up.  Basically I felt I didn't have the right command or I wasn't in the right division.  I really love the military, the learning experences, the traveling.  I know I didn't make the right choices I'm very sorry for that.  I would like to get my discharge up graded so I can go into a branch I feel would enjoy.  I would like to take care of my daughter.  There's no jobs but here.  If I could get back into the military I will work hard as I could to be a great service man.  All I ask for is a second chance.  Thank you

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)	971031 - 971123	COG

Period of Service Under Review:

Date of Enlistment:  971124		Date of Discharge:  981007

Length of Service (years, months, days):

	Active:    00  10  14
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  1 

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

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

Chronological Listing of Significant Service Events:

980829:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absence without leave from 0800, 5JUL98 to 2145, 6JUL98 (1 day, 13 hours and 45 minutes), (2) Absence without leave on 0600 to 0952, 8JUL98 (3 hours and 15 minutes), violation of UCMJ Article 91 (3 specs): (1) Insubordinate conduct toward petty officer on 27JUN98, (2) Insubordinate conduct toward petty officer on 5JUL97, (3) Insubordinate conduct toward petty officer on 8AUG98, violation of UCMJ Article 117: Provoking speeches and gestures on 7AUG98, violation of UCMJ Article 128 (2 specs): (1) Simple assault on 27JUN98, (2) Assault consummated by a battery on 9AUG98, violation of UCMJ Article 134: Disorderly conduct, drunkenness on 27JUN98.
	Award:  Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

980926:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

980926:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

980927:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.  Commanding officer’s comments (verbatim): After careful review of enclosures (1) through (4), it is clear that SR (applicant) is unsuitable for further military service due to his commission of a serious offense.  As his behavior is a hindrance to good order and discipline, it is recommended that SR (applicant) be separated from the Naval Service with an Other Than Honorable discharge.

Part of the discharge package is missing.  [Response from Commander, Amphibious Group Three not in service record]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981007 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims his personal problems at home were the reason for his misconduct.  He request’s a second chance.  There is no indication that the applicant’s personal problems were of such severity that they could not be handled through his chain of command.  There is no indication the applicant ever tried to use his chain of command to help resolve his personal problems or any indication of what his personal problems were.  The applicant has provided no documentation to support his claim.  The discharge was proper and equitable.  Relief denied.

The following is provided for the applicant’s benefit. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct, subsequent to leaving military service.  The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed.  This applicant’s discharge was proper and equitable.  Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general).  Those factors include but are not limited to the following:  Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate).  The applicant did not provide enough documentation of good character or conduct, which would warrant an upgrade to his discharge.  The applicant is encouraged to establish a reputation of good character and document his accomplishments.  Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements.  The applicant remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge.  Legal representation at the hearing is advisable. 
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91 (Insubordinate conduct towards a petty officer) and Article 128 (Assault consummated by battery), if adjudged at a Special or General Court Martial.

C.  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.  

D.  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.

E.  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 Street SE Rm 309
		Washington, D.C.  20374-5023