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Docket No. ND01-00590

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

 ex-SR, USN
Docket No. ND01-00590

Applicant’s Request

The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to Honorable or Entry level separation or uncharacterized and the reason for the discharge be changed to Convenience of the Government.  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 010817.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 34 months of service with no other adverse action.

2.  My use of alcohol impaired my ability to serve, I was under the influence at time of offense.  I had just turned 21, 3 months earlier and began to party alot.  I was not as mature as I am today.

3.  I received letters of recommendation.  I was retained at my court martial and recommended for retainment by the Naval brig commander.

4.  I was so close to finishing my tour it was unfair to give me a bad discharge.  I had only about 14 months to completing my tour.

5.  My average conduct and efficiency ratings/behavior and proficiency marks were good.  I've sent proof of this as listed in document 3.  My record of promotions showed I was generally a good service member.

Documentation

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

Copy of ASAT Program, Evaluation, Referral and Discharge Form dated August 3, 2000
Letter from Transitional Services Center, Orleans Correctional Facility dated March 23, 2001
Copy of Enlisted Performance Evaluation Report dated 94Mar16 to 94Jun28
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920222 - 920819	COG

Period of Service Under Review:

Date of Enlistment:  920820		Date of Discharge:  950602

Length of Service (years, months, days):

	Active:    02  09  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.50 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630600.

Chronological Listing of Significant Service Events:

941128:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Specification: Failure to obey order or regulation on 12Jun94, to wit: wrongfully having alcohol on board.
	Charge II:  violation of the UCMJ, Article 128:
	Specification: Assault on 12Jun94, to wit: unlawfully grab FN by her arms and hold them over her head while sitting on top of her.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Indecent assault on 12Jun94.
	Findings: to Charge I, II and III and specifications thereunder, guilty.  
	Sentence: Forfeiture of $550.00 per month for 6 months, confinement for 6 months, reduction to SA.
	CA 950111:  Sentence approved and ordered executed.

941128:	To confinement, Sentence of SPCM.

941220:	Naval Criminal Investigation Service Report found in service record.

950427:	From confinement, to duty.

950131:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

950131:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

950327:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

950410:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

95????:	Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

950511:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under Other Than Honorable conditions by reason of misconduct due to commission of a serious offense.

950518:	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 950602 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 and 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).

Issue 1.  The applicant states his discharge was based on one isolated incident in 34 months of service with no other adverse action.  The applicant was convicted at special court martial of three misconduct charges.  Relevant and material facts stated in a court martial specification are presumed to be established facts by the NDRB.  A discharge or dismissal adjudged by a court martial, tried under the UCMJ, can only be changed/upgraded for the purpose of clemency.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to grant clemency and upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Issue 2.  The applicant states, his use of alcohol impaired his ability to serve and he was not as mature as he is today.  The Board considers this a none decisional issue.  Relief denied.

Issue 3.  The applicant states he was retained at his court martial and recommended for retention by the Naval Brig Commander.  The Naval Brig Commander was not the final decisional authority in regards to the decision to retain or discharge the applicant.  The Assistant Secretary of the Navy (manpower and Reserve Affairs) made the final decision to discharge the applicant under Other Than Honorable conditions by reason of misconduct, due to Commission of a serious offense.  The discharge was proper and equitable.  Relief denied.

Issue 4.  The applicant states he was so close to finishing his tour it was unfair to give him a bad discharge.  The Board determined the discharge was proper and equitable.  Since the applicant was so close to the end of his tour he should have refrained from committing the misconduct, and he would have prevented the court martial, if he was concerned about the type discharge he would receive.  Relief denied.

Issue 5.  The applicant states his record of promotions showed he was generally a good service member.  Generally speaking, the applicant may have been a good service member, however, during the time of his misconduct he was not a good service member and was justifiably punished for violating the UCMJ.  The discharge was proper and equitable.  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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (failure to obey a lawful order), Article 128 (assault), and Article 134 (indecent assault), 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

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/A9455/A9319