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

 ex-AN, USN
Docket No. ND00-00977

Applicant’s Request

The application for discharge review, received 000804, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion 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 010215.  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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member avers that he did not commit the misconduct for which he was discharged.  He opines that his senior petty officers not only verbally abused him but also fabricated his UCMJ violations because they did not like him.  On this basis, he proffer that upgrade of his character of service to honorable is warranted.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214
Letter from Human Services Department forwarding application and correspondence to American Legion dated March 28, 2000
Copy of travel certificate, separation without orders dated November 3, 1999
Letter from applicant dated March 27, 2000
Letter from applicant dated November 14, 1999
Character reference dated March 12, 2000
Character reference undated
Character reference dated January 18, 2000
Copy of incomplete request for reference (DD Form 370)
Character/job reference dated September 27, 1997
Copy of evaluation report and counseling record dated 99Feb01 to 99Jul15, 97Nov20 to 98Jul15
Page two of evaluation report and counseling record dated January 25, 1999
Copy of adverse performance evaluation report dated January 19, 1999
Letter from applicant to USS Carl Vinson dated January 18, 2000 with enclosures
Letter to Employment Compensation from applicant dated January 12, 2000
Letter to applicant from Member of Congress dated November 15, 1999 with enclosures
Letter from applicant to congressman dated October 13, 1999 (2 copies)
Letter to applicant from Member of Congress dated October 3, 1999 with enclosures
Letter to applicant dated August 24, 1999
Copy of two pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	971112 - 971120	COG

Period of Service Under Review:

Date of Enlistment:  971121		Date of Discharge:  991104

Length of Service (years, months, days):

	Active:    01  11  14
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  12			AFQT:  11

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NER, NUC, MUC

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 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990107:	NJP for violation of UCMJ, Article 91 (2 specs): (1) Failure to obey lawful order, to wit: to assume the duties of gun crew for Gun Mount 511 on 18Dec98, (2) Disrespectful in language toward Gunner's Mate First Class on 2200, 18Dec98, to wit: by saying to him "Fuck you, I'm not going up there; you guys are treating me like shit", violation of UCMJ, Article 117: Wrongfully use provoking words toward a superior petty officer to wit: "Meet me somewhere private without your crow on so we can settle the problem", violation of UCMJ, Article 134 (2 specs): (1) Wrongfully communicate threat to a superior petty officer on 2200, 18Dec98, to wit: "If you make me go up there, I am going to shoot you, the chief, and everyone up there", (2) Wrongfully communicate to Mess Management Specialist Seaman on 2050, 25Dec98, to wit: "Don't fuck with me or I'll cut you all over".
	Award: Forfeiture of $519 per month for 2 months, restriction for 60 days, reduction to AA.  Reduction suspended for 6 months.  No indication of appeal in the record.

990107:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 91, Failure to obey a lawful order from a petty officer (2 specifications); violation of the UCMJ, Article 117, Provoking speeches; and violation of the UCMJ, Article 134, Communicating a threat (2 specifications), as evidenced by your commanding officer's nonjudicial punishment imposed on 7 January 1999.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990909:	NJP for violation of UCMJ, Article 91: Disrespect to a superior petty officer, violation of UCMJ, Article 117: Wrongfully use provoking gestures, violation of UCMJ, Article 134: Communicating a threat.
	Award: Forfeiture of $538 per month for 1 month, restriction and extra duty for 30 days, reduction to AA.  Reduction suspended for 6 months.  No indication of appeal in the record.

990929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by his two nonjudicial punishments imposed on 7 January 1999 and 9 September 1999 and commission of a serious offense as evidenced by his two nonjudicial punishments imposed on 7 January 1999 for violation of the UCMJ, Article 91, two specifications, and his nonjudicial punishment imposed on 9 September 1999 for violation of the UCMJ, Article 91, Article 117, and Article 134.

990929:  	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 

991008:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. 

991027:	COMCARGRU THREE 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 991104 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).

In the applicant’s issue 1, the Board found that the applicant was brought to CO’s NJP on 2 separate occasions for 8 violations of the UCMJ.  Although the applicant may feel that his senior petty officer abused him and fabricated his UCMJ violations because they didn’t like him, the applicant provided no evidence to support his allegations.  In addition, the Board found nothing in the records to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  No relief will be granted based on this issue. 

In response to the applicant’s issue 2, 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.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided ample documentation of good character and conduct.  Therefore no relief will be granted.  The applicant 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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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