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

 ex-AA, USNR
Docket No. ND00-00004

Applicant’s Request

The application for discharge review, received 990930, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall change.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  While this former member did violate UCMJ, Arts. 128: assault and 134: disorderly conduct, he proffers that extenuating factors, “hazing”, sufficiently mitigate his misconduct to warrant the Board’s relief.

2.  (Equity Issue) As the documentary evidence of record supports, this former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Employment Reference Letter
Letter of Recommendation
Buffalo Fire Commissioner's Unit Citation
Employment Character Reference Letter (3)
Police Record Check Release Form
Emergency Medical Services Certificate (First Responder)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  910521		Date of Discharge:  930624

Length of Service (years, months, days):

	Active:    02  00  00
	Inactive:  00  01  04

Age at Entry:  22			Years Contracted:  8

Education Level:  12			AFQT:  63

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.80 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910625:	Commenced two years Active Duty in the Seaman Apprenticeship Program.

920516:	Counseled: Retention despite fraudulent entry into the naval service as evidenced by failure to disclose pre-service civil arrests 900531 and 910317.  Advised of consequences of further deficiencies in performance or conduct, and issued discharge warning.

930521:	NJP for violation of UCMJ, Article 128: Unlawfully strike an E-2 by grabbing him with his hands and throwing him into a table, violation of UCMJ Article 134: Disorderly conduct which conduct was to the prejudice of good order and discipline in the armed forces.
	Award:  Forfeiture of $456.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Appealed.

930521:	Appealed denied.

930525:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930603:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to retain all rights.

930604:	Applicant elected to consult with civilian counsel at Administrative Discharge Board (ADB).

930605:	Commanding Officer notified applicant that request for civilian counsel was not timely as notification of proposed separation was made 930525; however, ADB will be scheduled for 930611 and there will no further delays.

930611:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930615:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

930622:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950327:	NDRB documentary record review Docket Number ND95-00009 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 930624 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 but inequitable (D and E).

In response to the applicant’s equity issues 1 and 2, the Board, after reviewing the applicant’s service record, grants relief under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.  The Board determined that the applicant’s discharge was severely harsh for the misconduct committed.  However, the Board determined that while the applicant’s service record and post-service record warrants an upgrade to general, the applicant’s overall record does not warrant an honorable discharge.

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 – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, assault, 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