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NAVY | DRB | 2000_Navy | ND00-00048
Original file (ND00-00048.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND00-00048

Applicant’s Request
The application for discharge review, received 991013, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000713. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I feel I should get a upgraded discharge because I didn’t know I couldn’t go off base and I stayed about 2 ½ hours and came back. I didn’t start any trouble or anything while in military. This was the only thing hopefully I can get back from this.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Record Check from Department of Veterans Affairs
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 890217               Date of Discharge: 890705

 Length of Service (years, months, days):

         Active: 00 04 00
         Inactive: 00 00 14

 Age at Entry: 23                          Years Contracted: 8

 Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

890306:  Ordered to active duty for 36 months under the Active Mariner program.
890427:  Medical Examination: Applicant evaluated by medical officer and found responsible for his actions at the time of his misbehavior and is at this time competent to face charges.

890512:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 89: (3 Specifications), Spec 1: Disrespectful in language toward his superior commissioned officer, by saying to her “fuck you, you white asshole,” on or about 890420, Spec 2: Disrespect in language toward his superior commissioned officer, by saying to her “fuck you, you white bitch” on or about 890422, Spec 3: Disrespectful in language toward his superior commissioned officer, by saying to her “fuck you and flipping the middle finger” on or about 890422. Violation of the Uniform Code of Military Justice (UCMJ) Article 90: (3 Specifications), Spec 1: Willfully disobeyed a lawful command from his superior commissioned officer to go to the seclusion room on or about 890419, Spec 2: Willfully disobeyed a lawful command from his superior commissioned officer to return to the quiet room on or about 890420, Spec 3: Willfully disobeyed a lawful command from his superior commissioned officer to return to the quiet room on or about 890422. Violation of the Uniform Code of Military Justice (UCMJ) Article 117: (4 Specifications), Spec 1: Wrongfully use provoking speeches and gestures toward Hospital Corpsman J___ W. H_____, to wit: “fuck you and flipping the middle finger” on or about 890422, Spec 2: Wrongfully use provoking speeches and gestures toward Hospital Corpsman D___ N. S_____, to wit: “fuck you and flipping the middle finger” on or about 890422, Spec 3: Wrongfully use provoking speeches and gestures toward Hospital Corpsman R___ M. H_____, to wit: “fuck you and flipping the middle finger” on or about 890422, Spec 4: Wrongfully use provoking speeches and gestures toward Hospital Corpsman D___ P. J_____, to wit: “you white punk, asshole” on or about 890421. Violation of the Uniform Code of Military Justice (UCMJ) Article 128: Assault Hospital Corpsman D____ N. S___ by kicking him in the leg with his foot on or about 890419.

890607:  A pplicant 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 stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 89, 90, 117, and 128. The applicant stated he was completely satisfied with the counsel he had received. 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.

890620:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890705 under other than honorable conditions in lieu of a trial by court-martial (A and 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).

In response to the applicant’s issue 1 concerning going “off base” and staying away for 2 ½ hours, the Board found that this was irrelevant to the reason the applicant was discharged from the Naval Service. The applicant was discharged in lieu of trial by court martial. The applicant admitted guilt to all charges preferred against him and requested an other than honorable discharge. The applicant was charged with 11 specifications of disrespect, assault, failing to obey orders and provoking speech and gestures, including racial slurs. The Board will not grant relief based on the applicant’s issue and found the applicant’s service was served under other than honorable conditions. No relief granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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      


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