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

 ex-AR, USN
Docket No. ND99-01153

Applicant’s Request

The application for discharge review, received 990830, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000512.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Received bad advice to take a summary court-martial vice captain's mast, waived rights resulting in no defense being provided and waived right to administration board.

2.  Bottom line other than honorable discharge was to severe for offenses committed. 

Documentation

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

Copy of DD Form 214
Copies from Service Record (34pgs)
Letter from COL C_____ E. D_____ (3pgs)
Letter from applicant's grandfather (2pgs)
Letter from applicant's mother (2pgs)
Letter from applicant (Navy History)(2pgs)
Letter from applicant (Recent History)(1pg)
Character Reference Letter
Employment Reference Letter
Photograph of applicant and friend
Permanent Student Record 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	940122 - 940719	COG

Period of Service Under Review:

Date of Enlistment:  940720		Date of Discharge:  950915

Length of Service (years, months, days):

	Active:    01  01  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.40 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950404:	Retention Warning: Advised of deficiency (You directed racial slurs against AN S___ on 950303, calling him "coon" several times.  This is in direct violation of the CO's policy on equal opportunity.  Additionally, your roommates have cited various instances where you have made demeaning racial remarks.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950619:	Pretrial confinement (950619-950714).
	
950714:	Summary Court-Martial for violation of UCMJ, Article 92: Wrongfully possessing weapons on board NAS Cecil Field without proper authority, violation of UCMJ Article 92: Violate a lawful order by having a female guest in the barracks after hours, violation of UCMJ Article 109: Without proper authority, willfully damage, by writing on it, one photograph of AA M____ A____.
	Sent:  Confinement for 26 days, forfeiture of $500.00, reduction to E-1.  CA (950714):  Concur with findings of the Summary Court-Martial..

950714:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by your summary court-martial on 950714.

950717:  	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 submit statement on own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

950727:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. 

950825:	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 950915, under Other Than Honorable conditions for misconduct due to Commission of a serious offense (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 the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims his Other Than Honorable discharge was too severe for the offenses committed.  The Board disagrees with the applicant’s claim.  He willfully violated the UCMJ and was justly punished at summary court-martial.  The discharge was proper and equitable.  Relief denied.

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, failure to obey a lawful order or regulation and Article 109, Damage or loss of property other than military property of U.S.

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 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