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

ex-SK3, USN
Docket No. ND01-00003

Applicant’s Request

The application for discharge review, received 000927, 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 010313.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was discharged appx 3 months after serving 45 days/ 45 days restricted duty 1/2 months pay for 2 months and reduction in rate from an E-5 to an E-1 this was the first offense I was charged with which I was found guilty.  I was discharged with evaluations from my superior officer of 4.0 except for military bearing.  I feel with these evaluations and my military record that a discharge of other than honorable conditions was not warranted.

Documentation

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

Letter from Applicant
Copy of Enlisted Performance Evaluation Report (2pgs)
Statement from Applicant (3pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			791207 - 840802	HON
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  840803		Date of Discharge:  861113

Length of Service (years, months, days):

	Active:    02  03  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  3.50 (4)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA, NAVY"E"RIBBON 

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:

840803:	Reenlisted at NSB Kings Bay, GA for 4 years.
 
860915:	NJP for violation of UCMJ, Article 117: Provoking words on 860816 (4 Charges), violation of UCMJ Article 128: Assault on 860816, violation of UCMJ Article 107: Making false official statement on 860805, violation of UCMJ Article 112a: Use of a controlled substance to wit: cocaine on or about 860708.
	Award:  Forfeiture of $494.85 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

861003:	Drug and Alcohol Evaluation indicates applicant tested positive for cocaine on 8608.  According to friends, another female poured cocaine into her drink, she was not aware, did not taste.  No previous use.  Alcohol History: 1-2 beers or cooler/night, more on weekend.  Drug History: Denies any previous use.  Impairment of Occupational/Social Functions: No hangovers on the job.  Prior offenses: None.  Prior Treatment: None.  Motivation for help: Will go to counseling.  She feel this is an isolated incident and does not have a problem.  Relevant Medical History/Physical Exam: Noncontributory.  Impression: Not dependent on drugs.  Recommendation: NADAP.

861027:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Commanding Officer's NJP of 860915 and misconduct due to drug abuse as evidenced by your illegal or wrongful use of controlled.

861027:  	Applicant advised of his rights and having elected not 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.

861030:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

861106:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 861113 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’s issue states:  “I was discharged appx 3 months after serving 45 days/ 45 days restricted duty 1/2 months pay for 2 months and reduction in rate from an E-5 to an E-1 this was the first offense I was charged with which I was found guilty.  I was discharged with evaluations from my superior officer of 4.0 except for military bearing.  I feel with these evaluations and my military record that a discharge of other than honorable conditions was not warranted.”  The Board found no impropriety in the applicant’s discharge.  The record shows the applicant was found guilty at NJP of violation of UCMJ Articles 117(Provoking Speech and Gestures), 128(Assault), 107(False Official Statement), and 112a(Wrongful use of Controlled Substance (cocaine)).  While the applicant feels her service was inequitably characterized, the Board found her positive contributions were outweighed by her documented misconduct.  Relief is denied.

The applicant is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 4/86, effective 
06 Oct 86 until 14 Dec 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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