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

 ex-SMSN, USN
Docket No. ND00-01044

Applicant’s Request

The application for discharge review, received 000913, 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. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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/MISCONCDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member opines that his UOTHC discharge is to harsh in light of his overall service record.  On this basis, he avers that separation under honorable conditions is warranted.

2.  (Equity Issue) This form 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

PART II - SUMMARY OF SERVICE

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

	Active:   USN			810529 - 850527	HON
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  850528		Date of Discharge:  880504

Length of Service (years, months, days):

	Active:    02  11  07
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  23

Highest Rate:  SM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.93 (3)	Behavior:  3.87 (3)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NER, SSDR (3), BER (2), MUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

871109:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 128:
	Specification: Wrongfully commit an assault.
	Findings:  to Charge I and specification thereunder, guilty.  
	Sentence: Forfeiture of $583.00 per month for 6 months, CHL for 6 months, reduction to SMSN.
	CA 871130:  Sentence approved and ordered executed.

871107:	Applicant to confinement.

871223:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

880110:  	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.

880125:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. 

880223:	Applicant released from confinement and returned to full duty.

880318:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

880321:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

880329:	CNMPC discharged the applicant 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 880504 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (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).

Issue 1 and 2.  The applicant states that his UOTHC discharge was too harsh, in light of his overall service record and he sites post-service conduct as justification for a discharge upgrade.  The applicant was convicted at Special Court Martial of assault.  The NDRB does not have the authority to overturn a court martial conviction but it does have the authority to grant clemency based on post-service conduct.  Verifiable proof of any post-service accomplishments must be provided in order for the NDRB to consider post-service conduct and behavior as a reason to upgrade the applicant’s less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents, therefore the NDRB has no basis for upgrading the applicant’s discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 (other than simple 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