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

 ex-BM3 , USN
Docket No. ND00-00027

Applicant’s Request

The application for discharge review, received 991004, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review in the Washington National Capitol Region.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 000516.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE)  While the former member did violate UCMJ, Arts 117, 128 and 134, he proffers that extenuating factors sufficiently mitigate his misconduct to warrant the Board’s relief.

2.  (EQUITY ISSUE)  As the documentary evidence of record supports, this former member 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 Commendation Letter
Letter from North Carolina Department of Administration
Copy of Enlistment Waiver Request
Copies of DD Form 214 (2)
Copy of DD Form 215
Copy of Previous Decisional Document (ND97-00600)
Letter from North Carolina Department of Administration
Letter of reference from Mr. W____
Letter of reference from Chief of Police, Mr. D_______
Letter of reference from Mr. W____
Letter of reference from Mr. S____

PART II - SUMMARY OF SERVICE

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

	Active:   USNR		850419 - 880404	HON
		   USNR		880405 - 900915	HON
		   USNR		900916 - 910719	HON
		   USNR		910720 - 951128	HON
	Inactive: USNR 		850416 - 850418	COG

Period of Service Under Review:

Date of Enlistment:  951129		Date of Discharge:  960523

Length of Service (years, months, days):

	Active:    00  05  25
	Inactive:  None

Age at Entry:  33			Years Contracted:  2 

Education Level:  12			AFQT:  32

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUCR, NUCR, AFEMw/1*, SSDR, EPSM, AFSM 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

951129:	Reenlisted at PERSUPPDET CAMP LEJEUNE, NC for 2 years.

960318:	NJP for violation of UCMJ, Article 117: Wrongful use of provoking and reproachful word, to wit: "Shut up nigger", on or about 960304, violation of UCMJ Article 128: Assault consummated by a battery by striking another sailor on the head and body by kicking him with his feet and grabbing him by the head with his hands, on or about 960304, violation of UCMJ Article 134: Communicating a threat to kill another sailor, on or about 960304.
	Award:  Forfeiture of $651.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  Appealed.  Appealed denied [Extracted from previous decisional document].

960320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, namely your violation of UCMJ Article 128 - Assault Consummated by a Battery and Article 134 -Communicating a Threat.

960402:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960409:	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.

960415:	Letter of Deficiency submitted by applicant’s counsel to CNP.

960424:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense. 

960516:	BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

970519:	NDRB documentary record review Docket Number ND97-00600 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960523 general under 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 response to the applicant’s issue 1, the Board took into account the extenuating factors and did not feel they were enough to mitigate or excuse his misconduct.  The applicant was charged with three very serious charges, two of which were court martiable offenses.  The CO granted leniency when he recommended a GENERAL (UNDER HONORABLE CONDITIONS) discharge characterization.  No relief will be granted on the basis of this issue.

In response to the applicant’s issue 2 of post-service factors, the Board did not feel there was enough evidence of post-service accomplishments to warrant an upgrade to HONORABLE.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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 [e.g., 128, assault consummated by battery; 134, communicating a threat] 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