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Docket No. ND01-00933

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

ex-ENFA, USN
Docket No. ND01-00933

Applicant’s Request

The application for discharge review, received 010716, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Honolulu, HI.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  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.  I feel my discharge from service was not all that fair to me.  I've had some problems adjusting to the military at first but I tried my best to follow orders given.  Learned what I needed to learn to advance in my rank/pay grade and did so.  My service record shows my improvements during my enlistment even my one (1) mistake prior to what got kicked out of the navy.  I was awarded the national defense service medal, southwest Asia service medal, Kuwait liberation medal, sea service deployment ribbon, navy unit commendation, did all this count for nothing?  I believe now that I was not treated fairly because when this incident happened I was sent to the brig before a NJP and signed papers without knowing fully what they were about.  So I ask respectfully to go over my service records and see if my discharge can an may be upgraded please thank you very much.

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:   USN 		None
	Inactive: USNR (DEP)	890614 - 890627	COG

Period of Service Under Review:

Date of Enlistment:  890628		Date of Discharge:  930702

Length of Service (years, months, days):

	Active:    04  00  05 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.40 (4)		OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, KLM, SSDR, NUC

Days of Unauthorized Absence:  21

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901022:	NJP for violation of UCMJ, Article 116: Wrongful participate in a Breach of the Peace by engaging in a fistfight.
	Award:  Forfeiture of $300.00 per month for 1 month, reduction to E-1 (All punishment suspended for 6 months).  No indication of appeal in the record.

930414:	NJP for violation of UCMJ, Article 91: Insubordinate conduct, in that EN3 O______ assaulted a Superior Petty Officer; violation of UCMJ Article 92: (2 Specifications), Spec 1: Failure to obey, in that EN3 O_____ failed to obey a lawful general order on or about 930311, by wearing an earring in uniform; Spec 2: Violation of a lawful order on or about 930312 by wrongfully introducing, possessing and using alcoholic beverages on board a US Naval Craft; violation of UCMJ Article 112a: (3 Specs), Wrongful possession, in that EN3 O_____, on or about 930312 did wrongfully possessed trace amounts of marijuana, a controlled substance while on board a naval vessel.
	Award:  Forfeiture of $520.50 per month for 2 months, restriction to ACU-2 for 45 days, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

930415:	Civil Conviction:  [General District Court, Criminal Division, Norfolk, VA] for Misdemeanor.  Charges: Assault and Battery.
Sentence:  $100.00 fine plus $26.00 court cost, 4 months confinement (3 months, 28 days suspended).  1 year probation.

930421:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930418 having been an unauthorized absentee since 1800, 930418 from Assault Craft Unit Two, UIC 53210, intentions to desert have been manifested.

930510:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious civilian conviction, and misconduct due to drug abuse as evidenced by all Commanding Officer's Non-judicial punishments and Administrative Remarks (Page 13) in your current enlistment.

930510:	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.

930513:	Report of Return of Deserter.  Applicant apprehended by DOD/NAB LCRK on 930507 (1500). Retained onboard pending disciplinary action.

930517:	DAAR indicates marijuana abuse, identified through Command Supervisor, found dependent by Medical Officer
 
930602:	NJP for violation of UCMJ, Article 86: Unauthorized absence 930416 to 930507 (21days/A).
	Award:  Forfeiture of $456.60 per month for 2 months, restriction to ACU-2 for 45 days, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

930604:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious civilian conviction, and misconduct due to drug abuse.

930628:	Enlistment extended due to time lost for UA to 930716.

930628:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930702 under other than honorable conditions for misconduct due to civil conviction (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 feel my discharge from service was not all that fair to me.  I've had some problems adjusting to the military at first but I tried my best to follow orders given.  Learned what I needed to learn to advance in my rank/pay grade and did so.  My service record shows my improvements during my enlistment even my one (1) mistake prior to what got kicked out of the navy.  I was awarded the national defense service medal, southwest asia service medal, kuwait liberation medal, sea service deployment ribbon, navy unit commendation, did all this count for nothing?  I believe now that I was not treated fairly because when this incident happened I was sent to the brig before a NJP and signed papers without knowing fully what they were about.  So I ask respectfully to go over my service records and see if my discharge can an may be upgraded please thank you very much.”  The NDRB found the applicant’s issue without merit.  The record shows the applicant had three separate NJP’s in his enlistment as well as a civil conviction for assault.  The applicant was afforded his due process throughout the discharge proceedings.  The Board noted the applicant’s last period of Unauthorized Absence was terminated by apprehension.  The applicant’s discharge of Other Than Honorable properly and equitably describes his service.  Relief is denied.

The applicant remains 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 15560C, Change 5, effective 
05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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 “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:   A6100/A9203/A9217/A9223/A9227/A9221