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Docket No. ND04-00317

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

ex-RMSR, USN
Docket No. ND04-00317

Applicant’s Request

The application for discharge review was received on 20031210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Detroit, MI.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910.  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:

“To whom it may concern, I’m requesting a upgrade of my discharge to Honorable conditions for the following reasons.  My two and a half years of service was filled with personal tragedy and also a lot of family turmoil in my home state of Michigan.  When I was discharged under other than honorable conditions my life was literally in shambles, because 3 months prior to my discharge, my first child’s mother told me I had just had our first and only baby boy! His mother lied and deceived me thereafter, when she put my son up for adoption without first giving me a chance to ever meet or help raise our son.  Please consider my purpose of this request is solely to better myself as a responsible citizen of this country.  In regard to my misconduct committed, I specificly remember telling the “Leutinant” that he was spitting directly in my face.  Following my attempt to leave this situation, the “Leutinant” continued to spit directly in my face, clearly disregarding my previous request, I acted on merely impulse and pushed him out of my face.  I realize now and I was clearly confenced then my actions were wrong and u-exceptable! My biggest regret is allowing my inner being to take control of my outer ability to restrain myself and just follow the officer’s order! Also, I’m currently under the leadership of Dr. L___ S___ (Chapel Hill M.B.C.).  My wife is currently a Detroit Police Officer serving our citizens devotedly and honorably.  My request carries merit on future because I’m currently trying to apply for the Detroit Police Department.  Also, my wife and children are considering relocating to Georgia, Atlanta; where my wife has applied for a lateral transfer from (D.P.D.) and will be testing to be interviewed for Decatur County Sheriff’s Dept.  It’s mandatory that I have a honorable discharge in order for me to consider to either Dept.  Please, respectfully consider my request, and base your decision on my broad change in life currently.  Thank you.”

Documentation

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

Employment Reference Letter dated November 29, 2003
Employment Reference Letter dated November 14, 2002
Employment Reference Letter dated June 5, 2003
Character Reference Letter dated June 4, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900125 - 900723	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900724		Date of Discharge:  920925

Length of Service (years, months, days):

	Active:    02  02  02
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (2)	Behavior:  3.26 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NDSM, SASM(w1*), HSM

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:

910621:	NJP for violation of UCMJ, Article 86: (3 Specifications), Unauthorized absence.
	Award:  Forfeiture of $437.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

910904:	Retention Warning:  Advised of deficiency (To be where you need to be and be on time as directed by higher authority.  To obey all orders and regulations as depicted by your chain of command), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910904:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction and extra duty to the limits of the USS PENSACOLA (LSD-38) for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

911121:	Punishment of reduction in rate to E-2 suspended at CO’s NJP of 910904 vacated this date due to continued misconduct.
  
911121:	NJP for violation of UCMJ, Article 117: Provoking speeches and gestures, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134: Threat communicating.
	Award:  Forfeiture of $377.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

920827:	NJP for violation of UCMJ, Article 128: Assault.
	Award:  Forfeiture of $392.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

920827:	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.

920828:	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.

920830:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. 

920917:	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 19920925 under other than honorable conditions for misconduct due to commission of a serious offense (A & B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  When the service of a member of the 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.  The Applicant’s service was marred by four nonjudicial punishment proceedings for eight violations of Articles 86, 117, 128 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  The Applicant contends his disciplinary problems were the result of stress caused by his personal problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

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.  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 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.  Additionally, 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.  Relief not warranted.

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 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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128, for assault, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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

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.