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

ex-SR, USNR
Docket No. ND01-00519

Applicant’s Request

The application for discharge review, received 010315, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 010710.  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 (verbatim)

1.  That if appropriate counsel was given during the time of incident of Aug 6, 91 my career or medical board may have been honorable and discharge honorably along with the proper care and treatment needed for my conditions.  Medical treatment is still needed due to the on going problem with my blood.  A medical board was processed and granted but received no copy.  An honorable upgrading is in needed to help in receiving the medical treatment I need.  Which is to see was very important at the time of the first process to receive a medical board, which had been recommended.  I have been hospitalized several times due to this on going problem.  First at Tripler Army Medical Center, Honolulu, HI 96859-5000; Second at Naval Hospital Bremerton, Wa 98312-1898; Third Walla Walla State Penitentiary Hospital all for a length of two weeks on a slow drip Heprin Machine due to the clots in my blood.

Documentation

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

Copy of DD Form 214
Statement from Applicant (4pgs)
Copies from Medical Record (65pgs)
Copies from Service Record (60pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  890913		Date of Discharge:  921217

Length of Service (years, months, days):

	Active:    01  10  19
	Inactive:  00  00  05

Age at Entry:  20			Years Contracted:  8 

Education Level:  12			AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.20 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR 

Days of Unauthorized Absence:  502 

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:

890918:	Ordered to active duty for 36 months under the Active Mariner program.

900804:	UA from 1200, 900804, to 0730, 900806 (2days/S).

900807:	Retention Warning:  Advised of deficiency (Commanding Officer's Nonjudicial punishment of 900807), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900807:	NJP for violation of UCMJ, Article 128: Unlawfully strike FR B____ on the body with his fist on 900626.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 15 days, reduction to E-1 (suspended for 4 months).  No indication of appeal in the record.

910916:	NJP for violation of UCMJ, Article 121:  Steal an MCI Long Distance Calling Card of some value the property of another member, violation of UCMJ Article 134: With intent to defraud, falsely pretend that he was authorized to use an MCI Long Distance Calling Card, the property of another member, a value of about $92.80 Long Distance Telephone Calls.
	Award:  Forfeiture of $100.00 per month for 1 month (suspended for 3 months contingent upon repayment of telephone calls to member MCI Card owner; and reduction to next inferior pay grade).  No indication of appeal in the record.

911114:	Civil conviction at Superior Court for State of Washington for Kitsap County for 5 counts of 1st degree Assault with a deadly weapon.
	Sent: 108 months x 5 counts, equalling 45 years.  Possible 15% off for good behavior.

920306:	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 conviction for 5 counts of first degree assault with a deadly weapon [Extracted from CO's message].

920827:  	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 [Extracted from CO's message].

921119:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by conviction for 5 counts of first degree assault with a deadly weapon.

921203:	BUPERS 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 921217, in absentia, under other than 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 the applicant’s issue 1, the Board has no obligation to change the applicant’s discharge in order to allow him to receive medical treatment.  The applicant was awarded CO’s NJP on 2 separate occasions, in addition to being convicted of 5 counts of 1st degree assault with a deadly weapon in a civilian court.  The applicant was sentenced to 45 years in prison.  The Board found that the applicant’s misconduct significantly outweighs any positive aspects of his service.  Additionally, if a service member commits misconduct while being considered for a medical discharge, the individual’s misconduct must first be addressed.  In the applicant’s case, the applicant was sentenced to 45 years in prison, therefore his medical discharge processing ceased.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 128, assault with a deadly weapon 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls10.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