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

 ex-ABHAN, USN
Docket No. ND00-00658

Applicant’s Request

The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing before the Board in the Washington National Capital region.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001206.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My separation from the U.S.Military was done by Administrative Board.  5 charges were brought against me in this Action
Charge 1 - theft second degree - state of Washington
See Document #1
Charge #2 - Assault D.V. #4
See Document #2
Charge #3 - Worthless checks
See Document #3
Charge #4 - Article 112(A)
Charge #5 - U.C.M.J. - Fighting

2.  I am writing to you hoping to receive a discharge up-grade.  I accept responsibility for my actions - I have spent the last 5 years trying to right many wrongs.  Enclosed are some of the document's pertaining to the issues that were used to discharge me from the Armed Service's.

Charge #1
Theft 2nd - State of Washington
I have had this matter dismissed from my record and I wish to have this matter not held against me.

Charge #2
Simple Assault DV #4
This charge was also used against me by the Government.  This matter has also been dismissed by the civilian court.  See Document #2.

Charge #3 Worthless Checks
The matter has been paid off.  See Document #3

Charge #4
Violation U.C.M.J.
Article 112-A

I was retained on active duty after this matter.  Subsequently had taken many more urine exams on active duty never had a problem before or after.

Charge #5
Fighting violation U.C.M.J.

Charges stem from an incident involving many people.  The matter involved nothing more than a small fine at N.J.P.

I wish for the board to look at my documents and statement in reviewing these matters.  Issues #4 and #5 were in my service record and therefore used against me.  I am not pointing the finger at any-one but myself.  I am trying to close this dark chapter in my life.  My loyalty the U.S. Navy and it's mission were always #1 in my book.  My problems were personnel not military orientated.  I lost focus on what was going on in my life, and it snow-balled out of control, by the time it was under control it was to late.  I was told that I needed to wait 5 yrs before applying for an up-grade review.  I hope that you will entertain my case with an open mind.  Thank you very much for your time.

3.  Request applicant's discharge be upgraded based on post-service conduct and previous honorable service.

Applicant performed as an above average Sailor while assigned duties within his rating.  He had completed one enlistment honorably in 1986.  His awards of the Navy Expeditionary Medal, Armed Forces Expeditionary Medal, and the Southwest Asia Medal w/l bronze star attest to his satisfactory performance when sent in harms way.

The applicant accepts responsibility for his actions and blames no one but himself.  He expresses remorse for his actions and continues to hold the U.S. Navy in high regard.

The applicant has completed all of his obligations to the civilian courts.  In response to a request for donations, the applicant readily donated clothing to the S.A.F.E. of Harlett County, NC (Sexual Assault and Family Emergency).  He has also donated to the Greenhouse Runaway Shelter Sumter County SC, thus contributing to the care for homeless, runaway, pushouts, throwaways, and abused and neglected youth.

The applicant displays a professional and gracious attitude.  He has proven himself an articulate, hard working, team player who is a pleasure to be around.  A co-worker (Major, USAF, Ret) describes him as honest and possesses the highest moral character.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for clemency based on post-service conduct and previous honorable service to his country.

Documentation

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

Police record check dated August 10, 2000 (2 copies)
Donors Official Receipt from United Way dated June 14, 2000 (2 copies)
Character reference dated June 6, 2000 (2 copies)
Letter from applicant dated April 20, 2000
Copy of DD Form 214
Copy of certificate and order of discharge court paper date stamped October 7, 1999 
SEATAC Municipal Court Docket (2 pages)
AAFES Collection Assistance Department letter dated July 13, 1999
Copy of previous enlisted DD Form 214
Receipt for charitable contributions to Santee Baptist Association, Crisis Closet dated May 4, 1998
Receipt for charitable contributions to S.A.F.E. Harnett County dated March 6, 1997
Letter from Greenhouse Run-A-Way Shelter Sumter County dated March 4, 1998
Character reference dated May 19, 2000
Character reference from USAF, Major, Ret. undated

PART II - SUMMARY OF SERVICE

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

	Active:   USN	R-R		831227 - 861226	HON
	Inactive: USNR (DEP)	830718 - 831226	COG

Period of Service Under Review:

Date of Enlistment:  880725		Date of Discharge:  940324

Length of Service (years, months, days):

	Active:    05  08  00
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  52/66

Highest Rate:  ABH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.58 (10)	Behavior:  3.22 (10)		OTA:  3.64

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), SASM with Bronze Star, OSR (2)

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 3630600.

Chronological Listing of Significant Service Events:

880725:	Applicant enlisted for 6 years after a break in service.

891221:	NJP for violation of UCMJ, Article 112A:  Wrongful use of a controlled substance.
	Award: Forfeiture of $468 per month for 2 months, restriction and extra duty for 45 days, reduction to ABHAN.  No indication of appeal in the record.

910121:	Retention Warning:  Advised of deficiency (Failure to pay just due debts in a timely manner.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910722:	NJP for violation of UCMJ, Article 128: Unlawfully grab a shipmate by the throat with his hands and choke him and unlawfully strike him in the upper body with his fist and in the back of his head.
	Award: Forfeiture of $200 per month for 2 months, reduction to ABHAN.  Reduction suspended for 6 months.  No indication of appeal in the record.

910722:	Retention Warning: Advised of deficiency (Your violation of the UCMJ, Article 128, in that you assaulted a shipmate by grabbing him by the throat and stuck him in the upper body and in the back of his head on 25 June 1991.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920805:	Retention Warning: Advised of deficiency (Failure to pay just debts in a timely manner.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930318:	Civil Conviction: Sea Tac Municipal Court, Sea Tac, WA for violation of domestic violence; 4th degree assault at Sea Tac
Sentence: Fine $250.00, jail for 90 days.  Jail for 88 days suspended.

931124:	Civil Conviction:  Port Orchard Superior Court, Port Orchard, WA for violation of theft 2nd degree.
Sentence: Fine $1400.00, Jail in 30 days, supervised probation for 12 months. Jail for 28 days converted to 28 days community service.

940112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, civilian conviction, and drug abuse.

940112:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940124:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940223:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offenses, civilian conviction and drug abuse.

940311:	BUPERS 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 940324 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 issues 1 and 2, the Board found, after reviewing the applicant’s record, that the applicant was discharged under other than honorable conditions for a commission of a serious offense.  Even though the applicant states that his civilian convictions have been dismissed, the applicant still committed a serious offense by violating UCMJ Article 112A for wrongful use of a controlled substance and violation of UCMJ Article 128 for assault.  The NDRB sees no reason to change the applicant’s discharge based on these issues.

In issue 3, the applicant’s representative requests the applicant’s discharge be upgraded based on post-service conduct and previous honorable service.  The Board took into consideration the applicant’s complete service record and post-service conduct.  However, the applicant’s numerous cases of misconduct outweigh the merits of his military service and post-service conduct.  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, is considered.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, more documentation of community service other than donations, and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

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 128, for assault, 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