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

 ex-OMSN, USN 
Docket No. ND00-00045

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 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 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/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Five years ago, during a fit of immature anger I uttered a racial epithet which resulted in my being discharged from Naval service.  I was wrong to have done so.  I respectfully ask that you reconsider the type of discharge that I was awarded.

I ask that it be based upon a review of my ten year service record, not upon one single irrational act of poor judgement on my part.  Gentlemen, I feel that my service record bears out the fact that I was a reliable and responsible sailor, although not a perfect one.  I ask that you not hold one isolated incident against me while making your decision.  Please consider that I must bear the consequences for the rest of my life if you do not alter the character status of my discharge.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214 (previous and current enlistments (2))
Copy of U.S. Merchant Marine Officer license dated March 23, 1998
Copy of endorsement to Merchant Marine license
Character reference
Copy of overseas endorsement as Merchant Marine Officer valid until January 31, 2002
Copy of certificate of blood donorship by American Red Cross
Copy of Training certificate as unlimited radar observer
Copy of fire school certificate
Copy of U.S. Able Seaman Merchant Marine's document
Copy of FCC GMDSS Radio operator license
Copy of character reference from Caya Club of Panama City Beach, FL
Character reference from applicant's mother
Character reference from pastor
Character reference from Operations Coordinator dated December 3, 1999
Copy of police record check dated March 23, 1999
Applicant's statement 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			770811 - 810716	HON
		  USN			871023 - 900614	HON
	Inactive: USNR (DEP)		770805 - 770810	COG
		  USNR		810717 - 830804	COG
		  USNR (DEP)		870707 - 871022	HON
Period of Service Under Review:

Date of Enlistment:  900615		Date of Discharge:  940331

Length of Service (years, months, days):

	Active:    03  09  17
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  13			AFQT:  81

Highest Rate:  HT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)	Behavior:  3.76 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  JMA, BEA(2), AFEM, GCM

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:

931223:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward MMC, by saying to him: "Go fuck yourself" on 28Nov93, violation of UCMJ Article 92 (3 specs): (1)  Violate a lawful general regulation, to wit: Secretary of the Navy Instruction 5300.26B, dated 6Jan93, by wrongfully sexually harassing female by grabbing her by the arm and kissing her on the face, (2) Violate a lawful general regulation, to wit: Secretary of the Navy Instruction 5300.26B, dated 6Jan93, by wrongfully sexually harassing female by stating, "your lucky you married or I'll take you and have sex with you.  If your husband isn't good enough, come and see me or look me up in the phone book, (3) Violate a lawful general regulation, to wit: OPNAVINST 5354.1C dated 13Apr89, by wrongfully participating in discriminatory practices by stating to female, where I come from, black people are nothing but niggers and trash", violation of UCMJ Article 134: Drunk and disorderly on 28Nov93.
	Award:  Restriction and extra duty for 30 days, reduction to OM3.  No indication of appeal in the record.

940113:	CAAC evaluated applicant and found him to be psychologically dependent on alcohol.  [Extracted from CO's message dated 28Feb94.]

940126:	Military Medicine Department: Recommend Level III treatment.  Recommend separate from service.  AA 5 times a week.

940228:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940228:  	Applicant advised of his rights and having consulted 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.

940228:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

940310:	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 940331 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).

The Board found that the applicant had several very serious violations of the UCMJ.  He could have been taken to court martial for most of these charges.  In response to the applicant’s issue 1, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In the applicant’s issue 2, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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