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

 ex-AZAR, USN
Docket No. ND01-00839

Applicant’s Request

The application for discharge review, received 010611, 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 did not list any representative on the DD Form 293.  Subsequent to the documentary review the applicant obtained Disabled American Veterans as his representative. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was wrongfully accused for something I didn't do and wasn't treated justly, also I wasn't given the type of discharge that was promised when I talked to my legal officer.

2. (DAV's Issue)  After a review of the Former Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Force of the United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his Under Other Than Honorable discharge to that of a General, Under Honorable Conditions. The records reflect the FSM served in the United States Navy from January 21, 1999 to June 21, 2000, with a narrative reason for separation as misconduct due to commission of a serious offense.  The FSM also notes that he was falsely accused of and offense that he did not commit, and further that he was promised a General discharge by his legal officer, and the promise was not kept, therefore bringing forth this case to seek equitable relief. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations. 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:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	990121 - 990125	COG

Period of Service Under Review:

Date of Enlistment:  990126		Date of Discharge:  000621

Length of Service (years, months, days):

	Active:    01  04  26
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  54

Highest Rate:  AZAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

991210:	NJP for violation of UCMJ, Article 90: Assaulting or willfully disobeying superior commissioned officer, violation of UCMJ Article 107: False Official Statement.
	Award:  Reduction to E-2.  No indication of appeal in the record.

991210:	Retention Warning:  Advised of deficiency (Your violation of the UCMJ, Article 86, Unauthorized Absence, Article 107, Sign a False Official Statement, Article 90, Willfully Disobey A Senior Commissioned Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
000227:	NJP for violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ Article 134: Indecent acts or liberties with a child, violation of UCMJ Article 86: (3 Specifications), Unauthorized absence, violation of UCMJ Article 134: Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.
	Award:  Forfeiture of $563.70 per month for 2 months, restriction to NAS PT MUGU Barracks for 45 days, extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

000330:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

000330:  	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 submit statements to the Administrative Board, or to the Separation Authority in lieu of a Board and to obtain copies of the documents used to support the basis for the separation.

000519:	Commanding Officer, Carrier Airborne Early Warning Squadron ONE ONE SIX recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

000524:	NJP for violation of UCMJ, Article 108: Military property or the United States-sale, loss, damage, destruction, or wrongful disposition.
	Award:  Restricted to NAS PT MUGU Barracks for 14 days.  No indication of appeal in the record.

000616:	Commander, Cruiser-Destroyer Group ONE authorized 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 000621 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).

Issues 1 and 2.  The Board found no evidence that the applicant was treated unfairly by his command.  The applicant is reminded that his legal officer does not have the authority to award discharge characterizations of service.  This determination is made by the separation authority, in the applicant’s case this was Commander, Cruiser- Destroyer Group One, who authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions and adverse counseling entries on another occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION 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 "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