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

 ex-RMSR, USN
Docket No. ND00-00626

Applicant’s Request

The application for discharge review, received 000418, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Detroit, MI.  The applicant listed a personal representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010129.  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,  

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My undesirable discharge was inequitable because it was based on one isolated incident in 29 months of service with no other adverse action.

2.  The undesirable discharge is improper because the applicant paid for his crimes and misconduct in forfeiture of pay, 30 days brig time, and the on-going tribulation of coping in society with other than honorable discharge.

3.  The undesirable discharge was accepted but not feasible since applicant found that these most recent charges of breach of peace was not totally avoidable, proven that applicant was forced to defend himself in brutal, nearly fatal knife attack.

4.  The undesirable discharge was improper because applicant joined the U.S. Navy 2 weeks after graduating from high school for a secured future and career with the U.S. Navy.  Applicant is a lot more focus on "Honorably" serving his country.

Documentation

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

Letter of Support from Rev. Dr M___ A. O___ 
Copy of DD Form 214
Copy of Police Record Clearance
Administrative Decision Letter from VA Regional Office (2pgs)
Copy of Operation Report from Medical Clinic Treasure Island (2pgs)
Copy of Business Conducting Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	930317 - 930628	COG

Period of Service Under Review:

Date of Enlistment:  930629		Date of Discharge:  951107

Length of Service (years, months, days):

	Active:    02  04  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  65

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

950118:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 941218 until 941219, violation of UCMJ Article 134: Unlawfully carry brass knuckles on 950112.
	Award:  Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 20 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

950118:	Retention Warning from USS INDEPENDENCE (CV-62):  Advised of deficiency (Captain's Mast for a violation of the UCMJ, Article 86 - Absent from appointed place of duty and 134; Possession of a concealed weapon), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950419:	Punishment of reduction in rate to RMSR, suspended at CO's NJP 950118 vacated this date due to continued misconduct.
 
950419:	NJP for violation of UCMJ, Article 121: Steal a baseball cap, the property of the Navy Exchange on 950305.
	Award:  Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

950914:	Summary Court Martial for violation of UCMJ, Article 116: Participate in a breach of the peace on or about 950629.
	Sentence:  Confinement for 30 days.
	CA (950926) Approved findings and sentence this date. 

950917:	USS INDEPENDENCE (CV-62) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your non-judicial punishments of 950118 and 950419; and by reason of misconduct due to a pattern of misconduct as evidenced by your non-judicial punishment of 950118, 950419, and your summary court-martial of 950914.

950917:  	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 submit statements on own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

950930:	Commanding officer recommended 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.  Commanding officer’s comments:  SR D_ has displayed a pattern of violent and criminal behavior as evidenced by his NJP’s for shoplifting, unlawful possession of brass knuckles, and his summary court martial for breach of peace by wrongfully engaging in a fistfight at a popular downtown district of Tokyo, Japan.  SR D_’s disgraceful conduct does not meet military or socially acceptable standards and can not be tolerated.  I recommend SR D_ be separated from the Navy with an Other Than Honorable discharge.

951013:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951107 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

The applicant’s first issue states:  “My undesirable discharge was inequitable because it was based on one isolated incident in 29 months of service with no other adverse action.”  The NDRB found this statement untrue.  The applicant’s misconduct was not based on “one isolated incident”, as stated, but was, in fact, based on a pattern of misconduct that included two non judicial punishments, and a Summary Court Martial.  Relief is denied.

The applicant’s second issue states:  “The undesirable discharge is improper because the applicant paid for his crimes and misconduct in forfeiture of pay, 30 days brig time, and the on-going tribulation of coping in society with other than honorable discharge.”  The NDRB found no impropriety in the discharge.  There is no rule or regulation that a discharge should be upgraded based on the applicant having “paid for his crimes and misconduct in forfeiture of pay, 30 days brig time, and the on-going tribulation of coping in society with other than honorable discharge.”  Relief is denied.

The applicant’s third issue states:  “The undesirable discharge was accepted but not feasible since applicant found that these most recent charges of breach of peace was not totally avoidable, proven that applicant was forced to defend himself in brutal, nearly fatal knife attack.”  The NDRB found this issue without merit.  Relief denied.

The applicant’s fourth issue states:  “The undesirable discharge was improper because applicant joined the U.S. Navy 2 weeks after graduating from high school for a secured future and career with the U.S. Navy.  Applicant is a lot more focus on "Honorably" serving his country.”  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel his immaturity was a factor that contributed to his action, 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 is denied.

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 recommended.

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.  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.  

C.  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.

D.  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