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

Docket No. ND03-00160

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

 ex-MS3, USN
Docket No. ND03-00160

Applicant’s Request

The application for discharge review, received 20021106, requested that the characterization of service on the discharge be changed to honorable.  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 20031003.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “My discharge is inequitable because it was based on misconduct in the commission of a serious offense.  My offense did not cause any bodily injury.  My job detail working with knives, this is the only reason I had a knife in my possession when the argument started with my fellow shipmate.  A search of my military records will show that I’m not a violate person.  Any mishaps was issues such as failure to follow, in which being young in the military, I had some growing to do.  I respectfully request this board to consider upgrading my discharge to Honorable from General under Honorable conditions.  I further respectfully request that my reentry code of R-4 be upgraded in case I’m needed to help defend my country in the time of war.  I will thank this board in advance for your time.  Cordially,”

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):

	Inactive: USNR (DEP)	19880623 - 19890612	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19890613		Date of Discharge:  19920731

Length of Service (years, months, days):

	Active:    03  01  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.53 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Letter of Commendation

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900611:	NJP for violation of UCMJ, Article 92: Disobeying order of senior petty officer, violation of UCMJ Article 128 (2 specs): Assault.
	Award: Forfeiture of $200 per month for 1 month, correctional custody for 30 days.  No indication of appeal in the record.

901220:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey an order.
	Award: Forfeiture of $100 per month for 2 months, correctional custody for 30 days, reduction to MSSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

920312:	NJP for violation of UCMJ, Article 117: Wrongfully use provoking gestures, to wit: picking up a knife in the Galley and moving into the passageway towards ET2 on 920215.
	Award: Restriction for 45 days, reduction to MSSN.  No indication of appeal in the record.  Appealed 920311.  Appeal denied 920324.

920321:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920325:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920429:	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 honorable conditions (general).

920605:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

920707:	BUPERS directed the Applicant's discharge under honorable conditions (general) 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 19920731 under honorable conditions (general) 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 states that he did not cause bodily injury to anyone and the only reason he had a knife in his hand when the argument started was because his job detail required him to work with knives.

The Board looks at the propriety and equity of an Applicant’s discharge and does not relitigate the circumstances surrounding a discharge.  The Applicant was discharged for committing a serious offense, disobeying a lawful order (violation of UCMJ Article 92) and not for assault or provoking gestures.  Therefore the discharge process was proper and equitable.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question.  No errors or inequities were discovered during the execution of this discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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 can be considered.  Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  At this time, the applicant has not provided any documentation for the Board to consider.  Therefore, no relief will be granted.

The applicant is reminded that he is 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.  Representation at personal appearance hearing is recommended but not required.

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.  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.

E.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (disobeying a lawful order), if adjudged at a Special or General Court-Martial.

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 "afls14.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: