Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND02-00420

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

 ex-MSSR, USN
Docket No. ND02-00420

Applicant’s Request

The application for discharge review, received 020221, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  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, as submitted

1.  Even though I do not condone nor deny my irresponsible actions that bring me to write this today I do respectfully request that another look be taken into my discharge.  While looking into my case it should be taken into account that I was under a tremendous amount of stress with my mother just being diagnosed with cancer during the same time that a found out that my navy career was about to be medically ended due to a respiratory problem.  The crime that I was accused of by no means reflects my true person or the intentions and hopes that I had before joining the Navy.  My perseverance, even through such adverse reactions from my military experience, to become a useful and model citizen of my community had not died.  Even though my will to succeed keeps me from giving up, my navy discharge hinders me a great deal.  So for this reason I am writing to whomever it my concern to please reevaluate my discharge and hopefully come to the conclusion that time was my greatest punishment but also my best teacher and give me the little assistance I need to accomplish my goal to become a more exemplary father and some day a more beneficial person.  Thank You.

Documentation

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

Copy of DD Form 214
Copy of Certificate of Completion (Beginning Access 2000)
Copy of Certificate of Completion (Beginning Windows 2000)
Copy of Certificate of Completion (EG2401 Basic Power Self Paced)
Copy of Certificate of Completion (TC1600 Telessentials Curriculum)
Copy of Certificate in Appreciation
Copy of Certificate of Completion (LDA130H Diversity in the Workplace Living our Lucent Value)
Copy of Special Merit Award
Copy of Certificate of Completion (CN1000 Quick Start Phase I)
Copy of Transcript from Pulaski Technical College
Copy of Criminal History Report 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	920210 - 930103	COG

Period of Service Under Review:

Date of Enlistment:  930104		Date of Discharge:  950303

Length of Service (years, months, days):

	Active:    02  02  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

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:

940225:	NJP for violation of UCMJ, Article 108: Destruction of Government Property.
	Award:  Restriction to Ship for 15 days, extra duty for 15 days.  No evidence of willful destruction of property or of a value in excess of $100.00.  No indication of appeal in the record.

941102:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 128, (2 Specifications), Spec 1: Unlawfully striking another service member in the head with a bottle on 940524; Spec 2: Unlawfully strike another service member with closed fist on 940825.  Charge II: violation of the UCMJ, Article 134: Disorderly conduct on 940824.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.
	Sentence:  CHL for 2 months, reduction to E-1.
	CA 941215:  Sentence approved and ordered executed.

941213:	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 Special Court-Martial conviction of 941102.

941221:  	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.

941230:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950228:	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 950303 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).

Issue 1:  The Applicant requests post-service clemency.  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the documentation submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct does not mitigate the conduct for which he was discharged.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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.  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:  A6730/A9307/A9321/A9221