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

 ex-QMSA, USN
Docket No. ND03-00897

Applicant’s Request

The application for discharge review was received on 20030505.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant elected to proceed with a documentary record discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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 OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good.

3.  I received letters of recommendation. (See attached documentation)

4.  There were other acts of merit,  (See letter and attached documentation)

5.  I have been a good citizen since discharge.

6.  My record of NJP’s/Article I5's indicated only isolated or minor offenses.

7.  I was retaliated against for my personal moral beliefs and issues.

8.  I was given large uncompleted tasks by others that were intended to cause failure within short time frame requirements.”

Documentation

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

Applicant’s DD Form 214
Applicant’s resumé
Applicant’s statement/explanation of issues (11 pages)
Letter to Board for Correction of Naval Records, dated February 21, 2003
Character reference form Captain, US Navy (Ret.), dated February 21, 2003
Character/job reference, dated February 12, 2003
Letter of recommendation, dated January 28, 2002
Character reference, dated January 21, 2002
Letter of recommendation, dated March 19, 2002
Hand written note from the Chief of Security, undated
Letter of recommendation, dated November 21,1990
Letter of recommendation, dated May 30, 1985
Letter to Applicant, dated December 14, 1992
Character reference, undated
Letter of Appreciation, undated
Thank you note to Applicant, dated August 1, 1992
Character reference, dated October 27, 1983
Letter of character, undated
Certificate, dated February 11, 1983
Certificate, dated February 25, 1983
Certificate, dated June 21, 1991
Certificate, dated June 25, 1985
Certificate, dated August 30, 1985
Certificate, dated November 20, 1985
Certificate, dated February 14, 1986
Certificate, dated October 15, 1985
Certificate, dated December 14, 1990
Certificate, dated May 14, 1986
Certificate, dated May 21, 1986
Certificate, dated December 14, 1990
Certificate, dated July 3, 1986
Certificate of attendance, dated April 10, & 11, 1995
Certificate, dated December 4, 1984
Letter from Texas Commission on Fire Protection
Letter from Harlingen Fire Department
Certificate, dated November 3, 2000
Initial training for October 18, 2000 to November 3, 2000
Certificate of achievement, dated August 29, 2001
Certificate, dated October 17, 1999
Certificate, dated January 9, 1991
Certificate, dated February 25, 1984
Certificate, dated February 23-24, 1991
Certificate, dated May 3, 2000
Certificate of participation, dated May 6, 2000
Certificate, dated May 8, 2000
Emergency medical technician card
Basic trauma life support card
Temporary License for Emergency medical technician card
Emergency medical service card
Wilderness emergency medicine card
North Dakota drivers license
Medical first respondent card
Health provider card
Certificate of attendance, undated
Proof of attendance, dated January 17, 2001
Certificate of attendance, dated February 21, 2001
Certificate of attendance
Certificate of attendance, dated January 18, 2001
EMS educational conference/training, dated September 28, 2000
Certificate, dated January 5, 2000
Certificate of completion, dated April 1987
Certificate of completion, dated June 10, 1987
Certificate of completion, dated August 29, 1987
Certificate, dated April 29, 1995
Certificate, dated December 5, 1988
Register scuba diver card
Advanced diver card
Diving rescue techniques card
American Nitrox Divers International card
Medic first aid card
Certificate of completion, dated June 7, 1980
Certificate of completion, dated June 26, 1988
Certificate of completion, dated February 1989
Certificate of completion, dated May 12, 1992
Certificate of training, dated December 22, 1997
Certificate of attendance, dated August 7, 1991
One page from Applicant’s service record
Training record
Article (6 pages)
Certificate of achievement, dated November 20, 1997
Certificate of National Association of Bail Enforcement Agents, undated
Certificate of Membership, dated January 31, 1997 to January 31, 1998
Certificate of recognition, dated January 31, 1997
Certificate of license, dated November 13, 1995
Cadet Private First Class certificate, dated December 14, 1978
Cadet Corporal certificate, dated May 15, 1979
Cadet Sergeant certificate, dated August 26, 1979
Certificate of completion, dated May 29, 1980
Certificate of achievement, dated September 13, 1997
Certificate of achievement, dated May 16, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871005 - 871025	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  871026			Date of Discharge:  901128

Length of Service (years, months, days):

	Active:    03  01  03
	Inactive:  None

Age at Entry:  23				Years Contracted:  4

Education Level:  12 ½ GED		AFQT:  85

Highest Rate:  QMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.07 (3)	Behavior:  2.93 (3)		OTA:  3.13

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 – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880602:	NJP for violation of UCMJ, Article 108: Willfully damage by kicking the door to room 309, military property of the United States on 880416, in the amount of $225.00 in damage.
	Award: Forfeiture of $200 per month for 1 month.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

900326:	NJP for violation of UCMJ, Article 91 (3 specs): (1) Treat with contempt QM1 E_ by throwing a pen and saying to him, “write me up, I don’t care, I don’t want to be here anyway” on 900312, (2) Disrespectful in language toward SH3 S_ on 900322 by saying to him, “You had your say, now shut the fuck up” on 900322, (3) Treat with contempt, LNC F_ by saying to him, ‘Fire me, then fire me” on 900322, violation of UCMJ, Article 92: Violate a general regulation, to wit: paragraph 510.7(B) of OPNAVINST 3120.328, standard organization and regulations of the USN dated 860926, by wrongfully lie on his bunk while clothed in dungarees on 900215.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 14 days, reduction to QMSA.  Reduction suspended for 3 months.  No indication of appeal in the record.

900326:	Retention Warning: Advised of deficiency (Two Commanding Officer’s nonjudicial punishments within current enlistment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900615:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward BM3 B_ “I don’t need to hear that kind of fucking shit”.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days.  No indication of appeal in the record.

900907:	NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 0745, 900826, to wit: Quartermaster of the watch, violation of UCMJ, Article 91 (3 specs): (1) Treat with contempt a PO3 by saying  to him, “get off the bridge” get off the bridge now on 900826, (2) Treat with contempt a PO3 by saying to him “If you ever pull that rank shit with me again on 900826, (3) Treat with contempt a PO1 by saying to him, “You better do something about him or there will be trouble” on 900826.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days, reduction to QMSA.  No indication of appeal in the record.

900915:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct due to the commission of a serious offense.

900915:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

901024:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a pattern of misconduct and serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

901102:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

901116:	CNMPC 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 19901128 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- 8:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  He also contends that he was guilty of only minor offenses, was retaliated against for his beliefs, and set up for failure by being given difficult and complicated tasks.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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.  Four NJP’s and a retention warning marred the Applicant’s service record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls far short of that required for an honorable discharge.  The Board found no evidence that Applicant was subject to any type of retaliation or that he was incapable of performing assigned duties.  An upgrade of his characterization of service to honorable is inappropriate.  Relief is not warranted.

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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 "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