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Docket No. ND00-00336

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

 ex-ABHAA, USN
Docket No. ND00-00336

Applicant’s Request

The application for discharge review, received 000118, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000817.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214.  Block 26, Separation Code should read:  “HKA” vice “GKA”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I was stationed in Pascaquda, Mississippi upon the USS INCHON, LPH-12.  I had an incident off base and was reduced in rank from E-3 to E-2,as well as receiving a other than honorable discharge.  I was found innocent by the city court of assault, but my command didn't listen to my side of the story.  I feel since I was acquitted by the civilian court, I shouldn't have been punished by the military system.  Such severe punishment for an event I was found innocent of is unjust.  I feel my discharge should be upgraded to general under Honorable conditions and full benefits restored.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge of Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, it is found that (applicant) requests a change of discharge from Other Than Honorable to General/Under Honorable Conditions.

In light of the circumstance of events as described by the FSM we request Clemency be used and that a favorable determination be allowed.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910628 - 920105	COG

Period of Service Under Review:

Date of Enlistment:  920106		Date of Discharge:  951222

Length of Service (years, months, days):

	Active:    03  11  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  ABHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.76 (5)	Behavior:  2.68 (5)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR

Days of Unauthorized Absence:  7 

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930714:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715-0945, 25Jun93.
	Award:  Correctional custody for 30 days.  No indication of appeal in the record.

940117:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0730, 30De93 to 1300, 5Jan94 (6 days/surrendered).
	Award:  Forfeiture of $511.50 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940126:	Retention Warning from USS INCHON (LPH 12): Advised of deficiency (Misconduct as evidenced by your 14 July 1993 and 17 January 1994 nonjudicial punishments for violation of UCMJ, Article 86: unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950422:	Applicant to unauthorized absence 0600, 22Apr95.

950423:	Applicant from unauthorized absence 0600, 23Apr95 (1 day/surrendered).

950512:	NJP for violation of UCMJ, Article 86 (2 specs): Failure to go to appointed place of duty at 0700, 8Apr95 and 0700, 22Apr95.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

950828:	Civil Conviction: Municipal Court of the City of Pascagoula, MI for violation of disorderly conduct.  Found guilty.
Sentence:  Fined $62.50 and court costs of $57.50.

950920:	USS INCHON (MCS 12) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three nonjudicial punishments and one civil conviction during your current enlistment.

950926:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

951018:	Applicant waived the administrative discharge board.  Phoncon with LN1, applicant no longer desires to make statement.

951026:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty, to wit: duty section muster from 0815-1030, 6Oct95.
	Award:  Restriction for 30 days, reduction to ABHAA.  No indication of appeal in the record.

951113:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

951211:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951222 under other than honorable conditions for misconduct due to a pattern of misconduct (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 states in issue 1 that “I was found innocent by the city court of assault, but my command didn't listen to my side of the story.  I feel since I was acquitted by the civilian court, I shouldn't have been punished by the military system.”  The Board found that the applicant was found guilty on 950828 of disorderly conduct.  In addition, the applicant had 4 NJPs, attended the Correctional Custody Unit and received a retention warning.  The Board disagrees with the applicant’s statement that he received “severe punishment.”  The applicant’s service is accurately characterized as having been performed under other than honorable conditions.  Relief is not warranted.

In the applicant’s issue 2, the applicant presented no evidence and no documentation that he deserves anything other than on other than honorable discharge.  No relief will be granted based on this issue. 

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 – A PATTERN OF MISCONDUCT. 

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:  A6750/A9401/A9237/A9223/