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

FOR OFFICIAL USE ONLY

 ex-FN, USN
Docket No. ND06-00205

Applicant’s Request

The application for discharge review was received on 20051116.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061006.  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 in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter:

“I am still patriotic and now know my previous service was taken for granted.  I have become a tax paying citizen that volunteers for community and veteran events.”

“To whom It May Concern, 

	My name is C_ D. B_ (Applicant), (SS#).  I am a prior service member of your United States Navy.  I am very ashamed of having to speak with you under these circumstances.  A couple of years back I was relieved of duty from the Navy for reasons not becoming of a member of this countries military.  I have been in deep regret of those decisions made while serving this country.  Now, I find myself in a position asking for remission from my nations government and military officials; not only for bringing shame to this countries fighting forces but also for bringing shame to my family and myself.  
I had an obligation of service to this country, and for me not to be able to fulfill this promise has taken my pride as well as my word as a man.  With all do respect Sr./Ma’am I need these two things back or, I could never stand as a man again.  Not being able to stand that ground is nothing I take lightly.  To me this means me not being able to provide security over my family.  So, Sr./Ma’am does this explain a little bit as to why I am in remorse to my government for wrong roads taken in my journey of becoming a better man.  I don’t mean to take up too much of your time but I am sincerely asking for another change to serve this nations military proudly.  If this is not asking too much could you please take some time out of your busy schedule and consider this matter that I bring before you today.
Thank you and God bless.

Very Respectfully,

[signed] C_ D. B_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010530 - 20010611	ELS
	Inactive:  USNR (DEP)	20010716 – 20010801	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010802		Date of Discharge:  20040430

Length of Service (years, months, days):

	Active:    02  08  29  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  Brig N/A*

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  37

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (4) 		Behavior:  1.8 (4) 			OTA:  2.42 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Enlisted Surface Warfare Specialist

*Number of days not available

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

020518:	NJP for violation of UCMJ, Article 128:  Assault on FN (SW) J_ on 2 May 2002.
	Award:  Forfeiture of $578.pay per month for 2 months, reduction to E-1 (suspended for 6 months) and CCU 30 days.  No indication of appeal in the record.

030131:	NJP for violation of UCMJ, Article 92:  Failure to obey lawful order or regulation.
Award:  Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

040402:	Applicant placed in pre-trial confinement in Naval Brig, Ford Island, HI.

040406:	Charges preferred against Applicant:
Charge I:  Violation of the UCMJ, Article 90:
Specification:  In that Fireman C_ D. B_, (Applicant), U. S. Navy, USS O’KANE (DDG 77), on active duty, having received a lawful command from the Command Duty Officer, LT D_ V_, U.S. Navy, USS O’KANE (DDG 77), his superior commissioned officer, then known by the said Fireman B_ (Applicant) to be his superior commissioned officer, to return from Tripler Army Medical Center with his escorts to his place of duty on the USS O’KANE (DDG 77), or words to that effect, did, on the island of Oahu, Hawaii, on or about 1 April 2004, willfully disobey the same.
Charge II:  Violation of the UCMJ, Article 95:
Specification:  In that Fireman C_ D. B_ (Applicant), U.S. Navy, USS O’KANE (DDG 77) on active duty, did, on the Island of Oahu, Hawaii, on or about 1 April 2004, resist being apprehended by, a Department of Defense Police Officer M_ K_, a person authorized to apprehend the accused.
Charge III:  Violation of the UCMJ, Article 111
Specification:  In that Fireman C_ D. B_ (Applicant), U.S. Navy, USS O’KANE (DDG 77), on active duty, did, at or near Pearl Harbor, Hawaii, on or about 1 April 2004, at or near the intersection of Radford Road and Scotts Loop, physically control a vehicle to wit; a 1994 Chevrolet, while drunk, or while the alcohol concentration in his blood was .10 grams of alcohol per 100 milliliters of blood or greater as shown by chemical analysis, and did thereby cause said vehicle and strike another vehicle and injure Gas Turbine Systems Technician (Mechanical) Second Class F_ T_, U.S. Navy and his two minor children, the occupants of the struck vehicle.
Charge IV:  Violation of the UCMJ, Article 117:
Specification 1:  In that Fireman C_ D. B_ (Applicant) U. S. Navy, USS O’KANE (DDG 77), on active duty, did, at or near Great Lakes, Illinois, on or about 1 March 2004, wrongfully use provoking words, to wit; “Shut the f--- up and mind your own business b----” towards Seaman H_ R_ F_, U. S. Navy.
Specification 2:  In that Fireman C_ D. B_ (Applicant), U. S. Navy, USS O’KANE (DDG 77), on active duty, did, at or near, Great Lakes, Illinois, on or about 1 March 2004 wrongfully use provoking words, to wit; “how about you shut the f--- up and stay out of my own damn business n-----” towards Seaman P_ M. M_ Jr., U. S. Navy.
Charge V:  Violation of the UCMJ, Article 128:
Specification 1:  In that Fireman C_ D. B_ (Applicant), U.S. Navy, USS O’KANE (DDG 77) on active duty, did, at or near Great Lakes, Illinois, on or about 1 March 2004, unlawfully strike Seaman Apprentice J_ V. D_,   U. S. Navy, in the face with his open right hand.
Specification 2:  In that Fireman C_ D. B_ (Applicant), U. S. Navy, USS O’KANE (DDG 77), on active duty, did, at or near Great Lakes, Illinois, on or about 1 March 2004, unlawfully grab Seaman M_, U.S. Navy, around the neck with both hands and choke him until someone from his class separated them.
Charge VI:  Violation of the UCMJ, Article 134:
Specification:  In that Fireman C_ D. B_ (Applicant), U. S. Navy, USS O’KANE (DDG 77), on active duty, did, on the island of Oahu, Hawaii, on or about 1 April 2004, wrongfully possess a duplicate military identification card (CAC), he, the said Fireman B_ (Applicant), then well knowing the same to be unauthorized.

040413:	Applicant requests administrative separation in lieu of a trial by court-martial.  Applicant acknowledged that he had consulted with counsel and was fully advised of the implications of his request.  The Applicant acknowledged that he understood the elements of the offense(s) of which he was charged, and admitted he was guilty of Violation of Article 90, UCMJ, Article, 111, UCMJ, Article 117, UCMJ and Article 134, UCMJ.  The Applicant acknowledged his understanding that if discharged under other than honorable conditions, it might deprive his of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

040414:	Commanding Officer, USS O’KANE (DDG 77), forwards Applicant’s request to Commander, Naval Surface Group Middle Pacific, recommending approval of separation under other than honorable conditions in lieu of trial by court-martial.

040420:	The Commander, Naval Surface Group MIDPAC, Pearl Harbor, HI, exercising GCMCA, approves Applicant’s request for an administrative separation in lieu of a trial by court-martial, and directs Applicant’s discharge with a characterization of service as under other than honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040430 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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).  

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Articles 90, 111, 117 and 134 of the Uniform Code of Military Justice (UCMJ).  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.  In addition to his admitted misconduct, the Applicant’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 92 and 128 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.
 
The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violations of the Uniform Code of Military Justice, Article 90, Assaulting, willfully disobeying superior commissioned officer; Article 111, Drunken driving; or Article 134, False or unauthorized pass offenses, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023