Author: CAP
Last saved by: Department of the Navy
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Docket No. ND00-00242

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

ex-SR, USN
Docket No. ND00-00242

Applicant’s Request

The application for discharge review, received 991209, 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 000803.  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 3630605.

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read:  “NAVMILPERSMAN, Article 3630605” vice “MILPERSMAN 3630600”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of Application for VA Education Benefits dated November 21, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960928 - 961006	COG

Period of Service Under Review:

Date of Enlistment:  961007		Date of Discharge:  970510

Length of Service (years, months, days):

	Active:    00  07  04
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  63

Highest Rate:  SN

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:  None

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

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

Chronological Listing of Significant Service Events:

961230:	Retention Warning: Advised of deficiency (Assault, (fighting), disorderly conduct, conduct unbecoming a sailor.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
970331:	NJP for violation of UCMJ, Article 107: False official statement, violation of UCMJ Article 134: False or unauthorized pass offenses.
	Award:  Forfeiture of $505 per month for 2 months, restriction for 55 days, reduction to AR.  No indication of appeal in the record.

970411:	NJP for violation of UCMJ, Article 91: Contempt or disrespect toward warrant, noncommissioned, or petty officer on 1Apr97 to wit: "you're fucked up", violation of UCMJ, Article 117: Provoking speeched or gestures on 1Apr97, to wit: "I'm going to kick our ass" towards MS2, violation of UCMJ, Article 86: Failing to go or leaving place of duty on 1Apr97, to wit: USS PORTLAND's galley.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

970411:	Applicant notified of intended recommendation for administrative discharge from the naval service by reason of fraudulent entry into the naval service as evidenced by failing to reveal your prior marijuana use and recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO's NJP 11 APR 97 for violations of UCMJ Article 91 (Contempt or disrespect toward warrant, noncommissioned, or petty officer)

970414:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970414:	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): SR (applicant) admitted during mast that he had used marijuana prior to entry into the Naval Service.  Also, he has admitted the usage or disclose the petty theft charge on the Pre-enlistment Disclosure form (Encl (5)), he was clearly fraudulent in his enlistment.

	SR (applicant) has been a disciplinary burden since reporting on board.  During his time in my command, he has been counseled repeatedly on his behavior, appearance, military bearing, proper use of the chain of command, and temper.  He has no respect for authority and very little for his shipmates.  SR (applicant's) work habits have been barely acceptable throughout his time on board.   His attitude, as expressed verbally and through his minimal performance of duty, has been one of barely suppressed insolence.  SR (applicant) has expressed his desire to leave the Naval Service to me personally.  I believe we should accommodate him.

	At his recent NJP he inquired whether it was necessary for him to continue working now that he had been fined.  On having it explained to him that further refusals of duty would result in another NJP, SR (applicant) stated that he had nothing further to lose.  Only the prospect of a subsequent Courts Martial was sufficient to convince him to remain obedient.

	SR (applicant) has been given the opportunity to turn his behavior around.  Any further efforts on the part of his chain of command would be futile given the total lack of results from SR (applicant) to date.  I therefore recommend separation with an Other Than HonorableDischarge.

970422:	Commander, Amphibious Group TWO approved the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  However, the execution of the discharge is suspended for a period of 12 months.

970508:	NJP for violation of UCMJ, Article 91: Willful disobedience of warrant, noncommissioned, or petty officer, to wit: Don your OBA on 6 May 97.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

970510:	Applicant advised of vacation of suspension of discharge.  Applicant waived all rights.

970516:	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): On 97APR22, Commander, Amphibious Group Two directed that SR (applicant) be separated with an Other Than Honorable discharge.  He also directed that the discharge be suspended for a period of 12 months.  Since that time, SR (applicant) has been to Commanding Officer's NJP twice.  Enclosure (4) an (5) are forwarded to support this.

	Because of his repeated disciplinary infractions, I vacated the suspended discharge and separated SR (applicant) with an Other Than Honorable discharge on 97MAY10, per enclosure (2).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970510 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 applicant introduced no decisional issues for consideration by the Board.

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.  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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0100/A9500/A9217