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

 ex-RMSA, USN 
Docket No. ND00-00252

Applicant’s Request

The application for discharge review, received 991214, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on an incident of misconduct with extenuating emotional mitigating factors.

In August 1998, 1 was serving as a Radioman & Surface Rescue Swimmer in what was my second deployment in the Persian Gulf on the USS Ingraham.  Our assigned mission was to maintain a military presence in the Gulf as a result of the ongoing crisis with Iraq.  It was at this time that I was informed that my mother had a relapse of metastatic breast cancer that we thought had been cured approximately one year before.  I was advised that her condition was very serious.

My emotionally charged state of mind, immaturity of age (20) and daily stress of deployment, was the spark that caused me to have a lapse of discipline with my E-6 over something as innocuous as the proper undershirt for my uniform.  I did not request, nor was I offered an opportunity to confer with a Judge Advocate, nor did I attempt to appeal the Non-Judicial Punishment that was imposed.  I was suffering from tunnel vision and simply accepted an administrative discharge, as it appeared to be the fastest way to return home to see my mother.  Even though I failed to consider the consequences of my actions at that time, I do not believe today that the consequences of being dogged by an Other Than Honorable Discharge for the rest of my life are equitable in lieu of the circumstances presented.

Thank you for your consideration in this matter.

Documentation

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

Copy of Evaluation Report & Counseling Record (4pgs)
Copy of Letter from Mother's Doctor
Copy of Commanding Officer's Commendation
Copy of Certificate of Completion for Surface Rescue Swimmer Training
Copy of Surface Rescue Swimmer Evaluation Report (2pgs)
Copy of Shellback Entry dated 970710 
Copy of DD Form 214 (2)
Letter from Attorney at Law L.L. M T_____ (2).

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  951004		Date of Discharge:  981022

Length of Service (years, months, days):

	Active:    03  00  19
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.08

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy Rifle Marksmanship Ribbon, SSDR, AFEM 

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970223:	NJP for violation of UCMJ, Article 134: (2 Specs), Spec 1: Wrongful alter his Military ID Card with intent to defraud or deceive, Spec 2: Wrongfully use his Military ID Card purporting to be over the age of 21.
	Award:  Forfeiture of $300.00 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

970429:	NJP for violation of UCMJ, Article 91: Disrespectful in language and deportment toward ET1 A______ by throwing cups and utensils after being told to wash them by hand; violation of UCMJ Article 92: Failure to obey a lawful order to field day until 1930 hrs on 970415.
	Award:  Forfeiture of $300.00 per month for 1 month, restriction and extra duty on the ship for 30 days.  No indication of appeal in the record.

980130:	NJP for violation of UCMJ, Article 116:  Riot or breach of peace, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134.
	Award:  Correctional Custody for 30 days, forfeiture of $463.05 per month for 2 months, reduction to E-1.  No indication of appeal in the record [Extracted from case file].

980901:	NJP for violation of UCMJ, Article 91: Contempt or disrespect to a superior Petty Officer, violation of UCMJ Article 92: failure to obey a lawful order.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record [Extracted from case file].

980903:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct pattern of misconduct and commission of a serious offense [Extracted from case file].

980903:  	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 obtain copies of the documents used to support the basis for the separation [Extracted from case file].

980913:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and commission of a serious offense.  Commanding officer’s comments (verbatim):  RMSA___(applicant) has shown his inability to conform to working in the Navy.  He was given a clean slate when he arrived to JARRETT but he continued his misconduct.  While serving in JARRETT he has shown disregard for ship and crew by threatening the safety of JARRETT’s security, in order to be separated from the Navy.  For this I removed his security access, and have recommended to DONCAF to have his clearance revoked.  RMSA____(applicant) has been given his chance to reform himself at two different commands and he has failed both times.  He has shown a great interest in separation from the Navy, by his actions and deeds he deserves an Other Than Honorable discharge. [Extracted from case file] 

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 981022 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 issue 1, the applicant states that his “discharge was inequitable because it was based on an incident of misconduct with extenuating emotional mitigating factors” concerning his mother’s health while he was on deployment.  However, before the applicant’s September 1998 non-judicial punishment, the Board found the applicant received non-judicial punishment on three other occasions beginning February 1997 through January 1998.  The applicant seems to show a propensity for causing trouble.  The Board also found that the applicant's age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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 92, for failure to obey a lawful order, 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