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

 ex-SR, USN
Docket No. ND00-00337

Applicant’s Request

The application for discharge review, received 000113, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 000831.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was arranged to be upgraded to general status six months after discharge from service.  It was agreed that if I waived my rights, I would receive a general discharge after six months of separation. I have not received my upgrade to this date.

2.  I received my discharge as a result of bad timing, and being in the wrong place at the wrong time.  My discharge resulted because of an incident that I had no control over and could not avoid.

3.  My discharge was based upon past occurrences with no real emphasis on the actual event that initiated my separation.

4.  I did not initiate the incident that I was involved in nor did I finish it, I was guilty by association only.  I feel that the punishment did not meet the crime and that I was discharged because of political reasons.

5.  I was involved in a "bar room brawl" that was caused by someone else.  I did not participate by choice.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	921124 - 921227	COG

Period of Service Under Review:

Date of Enlistment:  921228		Date of Discharge:  950119

Length of Service (years, months, days):

	Active:    02  00  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)	Behavior:  3.10 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER (2), SSDR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

931215:	NJP for violation of UCMJ, Article 113: Sleeping on watch on 11Dec93.
	Award:  Restriction and extra duty for 15 days, reduction to SR.  Reduction suspended for 6 months.  No indication of appeal in the record.

940118:	NJP for violation of UCMJ, Article 121: Larceny on 30Dec93.
	Award:  Restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

940324:	Retention Warning from USS RODNEY M DAVIS: Advised of deficiency (financially responsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941202:	Involvement with civil authorities: Applicant was at the Club Downtown at the Semiramus Hotel in Manama, Bahrain the morning of 2 December at about 0100.  After returning from the club bar he saw several shipmates involved in a fight.  Applicant joined the fight and in the brawl he broke a bottle over the head of a Bahrain national.  The fight was broken up by a club bouncer and all Americans in the bar were told to leave.  As the Americans, including applicant, started to leave, most of the men in the bar started to fight the American's again at the entrance of the club.  The group of American's left the club and ran down the street, pursued by a mob of Bahrain nationals.  While running, applicant fell and was beaten by the mob.  Applicant got up and made it into a cab in which the other Americans had taken refuge.  The cab was surrounded and beat on by the mob until the cab driver returned with the local police.  Action taken by civilian authorities: Civilian police released applicant into the custody of ASU Bahrain security detachment personnel without filing any charges.  A 25 dinar (about $60) fine was paid in order to release applicant.

941204:	NJP for violation of UCMJ, Article 128: Assault aggravated, with a dangerous weapon, means, or force, to wit: Commit assault upon a Bahrain national by striking on the head wit a deadly weapon likely to produce grievous bodily harm, to wit: a bottle, violation of UCMJ Article 116: Riot or breech of peace, to wit: at the Club Downtown, Bahrain, on 0100, 2Dec94 cause a riot by fighting with Bahrain Nationals, and did continue the fight outside the club downtown in the streets of Bahrain, to the terror and disturbance of the Bahrain citizens.
	Award:  Forfeiture of $416.40 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

941204:	USS RODNEY M DAVIS notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ during your current enlistment.

941205:  	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. [Date extracted from Commanding Officer's message dated 9Dec94.]

941209:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to commission of a serious offense and a pattern of misconduct.   CO’s comments:  SR B____ is a hard worker within his division and has made major improvement in hi performance onboard since his last Captain’s mast in January 1004.  SNM’s deficiencies lie in his personal conduct and violence while on liberty.   SR B____ has proven himself incapable on conducting himself within the standards of the Navy while on liberty.   SR B___ has been counseled on his liberty behavior.  SR B___ has been to Captain’s mast three times, first for sleeping on watch on 15 December 1993, second for larceny on 18 January 1994, and finally for aggravated assault and inciting a riot on 4 December 1994.  SR B___’s conduct is unacceptable in the Naval service.  Based on SR B___’s job performance, he should be discharged with a general characterization.

941219:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950111:	Applicant's defense counsel questioned discharge processing re: waiver of administrative discharge board if the CO recommended a general under honorable condition discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950119 under other than honorable conditions for misconduct due to a pattern of misconduct (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, 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.  The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general).

In the applicant’s issues 2 through 5, 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.  The applicant had 3 NJPs and had received a retention warning in only 2 years of service.  His first NJP was for sleeping on watch, his second NJP was for larceny and his third NJP was for aggravated assault and breach of peace.  The applicant could have been court martialed for these offenses and received a Bad Conduct Discharge or a Dishonorable Discharge.  Instead, the Commanding Officer chose to administratively separate the member.  No relief will be granted based on these issues.

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 – A PATTERN OF MISCONDUCT. 

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