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

 ex-SHSA, USN
Docket No. ND00-00291

Applicant’s Request

The application for discharge review, received 990219, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Houston, TX.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928.  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.  My discharge was inequitable because it was based on one isolated incident in 30 months of service with no other adverse action.  On Sept 12, 1994 my father passed away, I went home for a thirty day leave.  On the night of the incident (upon my return to Yokusuka, Japan Naval Base ) a friend of mine from the ship and other people approximately 6 total persons went to a public park off base to have a picnic around dusk 5 homeless Japanese men came up to us and like beggars & transients were asking for food, money, but these men were extremely intoxicated, these Japanese men were pushing me, stealing food - but didn't care at the time.  I figured they were just being rude to the levels of alcohol each Japanese male had consumed , finally after I gave them all I had to eat and the few hundred yen I had in my possession, I just blew it off.  About 3 hours later it was pitch black dark outside and I had the urge to relieve myself  so I went to the public toilet  which was locked up - then I did the next best thing I found a couple of trees.  At this time I had ventured off from the group away back.  As I approached the group I was struck in the neck with a railroad tie.  The blow caused me to bleed - so I panicked I turned around and saw the 5 Japanese men circling around me - I had no choice but to defend myself.  Just think how you would feel if 5 drunk angry, Japanese Men were attacking you all at once.  After I defended myself those 5 men lay on the ground I really didn't know what had just transpired - a witness ran back to base and contacted the Marines on duty.  The next day I was confined/suspended to the ship after 4 1/2 months being on the USS INDEPENDENCE.  I went to Captain's Mast - was found guilty non alcohol related incident but at not time was this an alcohol related incident - the ship had no legal grounds or proof or a Court Martial so the released me on a General Under Honorable Condition the other 4 sailors were allowed to finish out their term in the Navy.  Now I am married have one son and would like to finish college but lack the funds, please change my discharge to honorable.

Documentation

In addition to the service record, A PARTIAL DISCHARGE PACKAGE ON SERVICE RECORD and the following additional documentation, submitted by the applicant, was considered:

Copies of DD Form 214(2).
Letter from applicant
Resume
Picture of applicant's wife and son 
Copy of Leave and Earning Statement.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	920526 - 921206	COG

Period of Service Under Review:

Date of Enlistment:  921207		Date of Discharge:  960124

Length of Service (years, months, days):

	Active:    03  01  013
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  SHSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (3)	Behavior:  3.60 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASMw*, SSDR,

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:

951002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951002:  	Applicant advised of his rights and having elected 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 and to appear before an Administrative Discharge Board.

Remainder of Discharge Package Missing

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 960124 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).

In response to the applicant’s issue, an error or injustice must be found to have existed during the period of enlistment under review to permit relief.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  Since most of the applicant’s administrative discharge package was not submitted for review, the Board must assume regularity in government affairs.  There was no rights violation and no basis for relief.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 provided a resume and a leave and earnings statement 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, more employment record data, documentation of community service and certification of non-involvement with civil 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 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.  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