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

 ex-SM2(SW), USN
Docket No. ND99-00312

Applicant’s Request

The application for discharge review, received 990104, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that the six years of his otherwise creditable service is sufficient to warrant a fully honorable discharge.

2.  (EQUITY ISSUE) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of letter of appreciation dated July 15, 1994
Copy of letter of appreciation dated May 25, 1994
Performance report from June 30, 1994 to January 16, 1995
Copy of Associate of Arts Degree from the University of Phoenix
Character reference from pastor
Copy of police record check from Ada County, Idaho dated December 3, 1998
Copy of police record check from the state of Idaho dated December 10, 1998
Copy of letter from the Boise VA Medical Center re:  voluntary services
Copy of certificate to applicant
Letter from LCdr undated addressed to shipmate
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			890321 - 930121	HON
	Inactive:  USNR (DEP)	890106 - 890320	COG

Period of Service Under Review:

Date of Enlistment:  930122		Date of Discharge:  950706

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  None

Age at Entry:  37			Years Contracted:  3

Education Level:  12 1/2		AFQT:  72/70

Highest Rate:  SM2(SW)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.77 (6)	Behavior:  3.63 (6)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NDSM, NER

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950317:	NJP for violation of UCMJ, Article 128:  Assault on another military member on 6 February 1995, violation of UCMJ Article 134 ( 2 specs):  (1) Communicating a threat violation on 6 February 1995, (2) Disorderly conduct on 6 February 1995.
	Award:  Forfeiture of $636 per month for 2 months, restriction and extra duty for 30 days, reduction to SM3.  Reduction suspended until 30 June 1995.  No indication of appeal in the record.

950327:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950328:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950508:	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 general (under honorable conditions).

950515:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

950613:	BUPERS directed the applicant's discharge general (under 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 950706 general (under 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).

Issue #1, submitted by the American Legion on behalf of the applicant, cites an equity issue based upon the applicant’s creditable service as being sufficient to warrant separation under honorable conditions.  The Board found evidence of a clear violation of Navy policy with respect to violent behavior and threats by the applicant.  The applicant’s behavior led to and resulted in his General (Under Honorable Conditions) discharge.  Neither the applicant nor his representative provided evidence to warrant changing his discharge characterization.   

Issue # 2, submitted by the American Legion on behalf of the applicant, cites an equity issue requesting the Board to fully consider post-service conduct in assessing the merits in this case. The Board’s review included assessment of all documents and records submitted by the applicant and his representative.  Regrettably, the documents and records submitted do not mitigate or obviate the non-judicial punishment awarded the applicant during his period of service.  However, the Board does acknowledge the applicant’s effort in improving his life and in becoming a more productive member of society by pursuing further education and volunteering at a V.A. hospital.  

Further, there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time, or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must exist during the period of enlistment in question. 

Accordingly, the Board found the discharge to be proper and equitable.   Relief is denied.  

The applicant is reminded he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of his discharge.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023