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

ex-SR, USN
Docket No. ND00-00213

Applicant’s Request

The application for discharge review, received 991130, 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 000803.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I repeatedly sought help from my immediate supervisors, but was ignored until the problem got out of hand, then everyone favored the Seaman with greatest seniority.

2.  I was assaulted by the other Seaman.  I did not attempt suicide; I was pushed off the ship, momentarily caught by the little railing, then fell off the ship, landed in the water and picked up by a ship that was following the Saipan.  They heard me calling for hlep and rescued me, took me to the hospital.

3.  The present discharge classification is causing extreme hardship for me, especially when I seek employment, federal or state.  This discharge classification causes social conflicts--my family and friends look down on me, it seems to cause them to think less of me; it also hampers my own self-esteem.  I would like to marry and not have them, family think less of me--PLEASE HELP ME?  THANK YOU.

Documentation

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

Statement from applicant
Fifty -eight pages from applicant's service/medical records
Copy of DD Form 214 (4 copies)
Copy of police record check dated September 24, 1999 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	951214 - 960827	COG

Period of Service Under Review:

Date of Enlistment:  960828		Date of Discharge:  971125

Length of Service (years, months, days):

	Active:    01  02  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  14 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970115:	Retention Warning: Advised of deficiency (Any involvement with the unauthorized use and possession of drugs with military or civilian authorities will result in disciplinary action, and possible processing for administrative discharge.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970606:	NJP for violation of UCMJ, Article 91: Willful disobedience of CPO, violation of UCMJ Article 92 (2 specs): (1) Disrespect in language to CPO, (2) Failed to obey order of CPO.
	Award:  Forfeiture of $400 per month for 1 month, restriction for 15 days, oral reprimand.  No indication of appeal in the record.
	
971114:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0630, 12Oct97 to 2015, 26Oct97 (14 days/surrendered), violation of UCMJ, Article 87: Missing ship's movement on 12Oct97, violation of UCMJ, Article 134: Wrongfully and intentionally jumping from a naval vessel.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

971117:	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 service record entries, misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in the current enlistment; and convenience of the government on the basis of personality disorder.

971117:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971118:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and convenience of the government on the basis of personality disorder. 

971123:	Commander, Amphibious Group TWO 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 971125 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 response to applicant’s issue 1, the Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.  Relief denied.

In response to applicant’s issue 2, to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issue 3, the Board has no obligation to change the applicant's discharge in order to allow him to obtain better employment or resolve social conflicts.  Relief will not be granted on this issue.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, for wrongfully and intentionally jumping from a naval vessel, 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