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

 ex-OTSAN, USN
Docket No. ND00-00218

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 000810.  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 (verbatim)

1.  Respectfully request discharge upgrade to honorable.

Documentation

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

Copy of DD Form 214 (2 copies)
Statement from applicant dated February 4, 2000
Copy Advanced Technology Institute dated December 21, 1999
Copy of certificate from ESCO Institute
Character reference dated January 13, 2000
Copy of Certificate of Achievement dated July 30, 1999 and October 21, 1999
Copy of Perfect Attendance certificate dated August 27, 1999 and September 24, 1999
Copy of Certificate re: Dean's List dated August 27, 1999, October 21, 1999, November 17, 1999 and December 15, 1999
Copy of social security card
Copy of Virginia driver's license
Copy of Certificate of Completion dated August 22, 1998
Copy of notification of personnel action dated October 14, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881221 - 890910	COG

Period of Service Under Review:

Date of Enlistment:  890911		Date of Discharge:  930908

Length of Service (years, months, days):

	Active:    03  11  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  63/43

Highest Rate:  OTASN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)	Behavior:  3.65 (4)		OTA:  3.25

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

901129:	NJP for violation of UCMJ, Article 121: Steal two prerecorded video tapes and six compact discs from the NAS Whidbey Island Navy Exchange.
	Award:  Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days, reduction to OTSAR.  Reduction suspended for 6 months.  No indication of appeal in the record.

910326:	Vacate suspended reduction to OTASR awarded at CO's NJP dated 29Nov90.

910327:	Retention Warning: Advised of deficiency (Being late for watch and assigned military duty, failure to complete operational requirements (Beam annotation), failure to follow your supervisors direction and failure to obtain proper rest before watch.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930714:	BUPERS disapproves applicant’s request for an “early out” and directs command to proceed with the administrative discharge.

930107:	Special Court Martial
	Charge I: violation of the UCMJ, Article 134
	Specification:  Unlawfully carry on his person a concealed weapon. Findings: to Charge I and specification thereunder, guilty.
	Sentence:  Confined for 1 month, forfeiture of $250 per month for 2 months.

930524:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930803:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930804:	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).

930818:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): Request the PERS-83 expedite this case due to members EAOS of 11 September 1993.  Concur with the board's recommendation that Seaman (applicant) be separated.  I strongly disagree that the characterization for separation be General.  I recognize the fact that PERS-83 can not give a more severe characterization than that recommended by the board but OTASN (applicant) deserves to leave the Navy with the characterization of Other Than Honorable.  The following facts lead to my decision to process Seaman (applicant) for separation:  
	8 Nov 90 - OTASN (applicant) went to NJP for violation of Article 121 for stealing 2 prerecorded video tapes and 6 compact discs from the Navy Exchange.  Received restriction to NAS for 30 days, and forfeiture of $100.00 pay per month for two months, reduction to next inferior pay grade (reduction suspended for 6 months) and extra duty for 30 days.
27 Mar 91 - Received PGI3 for being late for watch and assigned military duty, failure to complete operational requirements (beam annotation), failure to follow supervisors direction and failure to obtain the proper rest before watch.
26 May 91 - Reduction in Rate vacated.
May 92 - Detained by civil authorities in Seattle, WA for involvement in drive by shooting.
16 Oct 92 - Received limited access to the NAVFAC.
18 Nov 92 - 3 Feb 93 - During this time period the command received numerous letters of indebtedness on OTASN (applicant).  He was counselled on his responsibilities to maintain financial stability and continued to demonstrate an inability to maintain financial stability.
7 Jan 93 - Went to court martial for participation in drive by shooting.  Received plea bargain to Article 134 and was found guilty of unlawfully carrying on or about his person a concealed weapon to wit: nine millimeter pistol.  He was granted the plea bargain in conjunction with an agreement to testify against another Navy member who actually injured a pedestrian.
- Received sentence to be confined for period of one month and forfeiture of pay $250.00 per month for two months.
31 Jan 93 - Recommended for advancement to E-4 withdrawn due to marginal performance.
5 Feb 93 - OTASN (applicant) received suspension of driving privileges on NAS Whidbey Island for two years for driving while license is suspended.
6 Feb 93 - OTASN (applicant) disobeyed a lawful written regulation - wearing an earring on base and committed an act of assault.  This incident was not taken to NJP or Court-Martial due to decision in May to conduct administrative separation proceedings.  The decision to conduct administrative separation proceedings was based on the difficulty in conducting a Courts-Martial.  The command was briefed by NLSO that there would be a significant delay in the Courts-Martial proceedings due to Seaman (applicant's) previous problems, no lawyer in the immediate area could take the case due to a conflict of interest.  The two civilian females were also afraid to testify against Seaman (applicant) in any type of proceedings.
26 May 93 - Received notification from Clerk of the Court, Skagit County District Court on various traffic violation to include:
- 13 July 90 speeding 10 MPH over speed limit find of $38.00 paid.
- 8 March 92 speeding 35 MPH over the speed limit, fine of $303.00. Still outstanding.
- 2 May 92 driving with wheels off roadway, fine $142.00.  Still outstanding.
He has been counseled regarding his numerous traffic violations.  Even after his May 1992 violation he continued to demonstrate a disregard for traffic laws, having his base driving privileges suspended for two years.
OTASN (applicant's) off duty conduct served as a detriment during his naval career.  He continuously had problems conducting himself in a professional manner away from work.  He demonstrated problems with obeying the rules of deportment for living in a civilized community and his obedience of naval policy outside of the work place which makes him an administrative burden and liability to the U.S. Navy.  Seaman (applicant) has displayed numerous acts of violence ranging from assault to participation in a drive-by shooting which shows a disregard for human live and does not reflect honorable behavior, 'bringing discredit to the U.S. Navy.

930831:	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 930908 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 found that the applicant had a CO’s NJP and a Special Court martial.  The CO then began processing the applicant for separation.  The applicant was given his proper rights and elected an Administrative Discharge Board.  The applicant was fortunate that the Board recommended a general (under honorable conditions) characterization of discharge considering the serious offenses the applicant had while in the service.  The Board finds the discharge both proper and equitable.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  No relief granted.

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