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

ex-SA, USN
Docket No. ND00-01057

Applicant’s Request

The application for discharge review, received 000918, 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 the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301.  After a thorough review of the records, 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: GENERAL (UNDER 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 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:   None
	Inactive: USNR (DEP)	970930 - 980615	COG

Period of Service Under Review:

Date of Enlistment:  980616		Date of Discharge:  990905

Length of Service (years, months, days):

	Active:    01  02  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, BER

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990217:	NJP for violation of UCMJ, Article 91: Disrespectful in language towards a chief petty officer on 28Jan99, to wit: by saying ”fuck you", violation of UCMJ, Article 117: Wrongfully use provoking words to a chief petty officer on 28Jan99, to wit: by saying "get the fuck out of my way, don't put your fucking hands on me", violation of UCMJ, Article 128 (2 specs): (1) Assaulted a superior petty officer, to wit: by swinging his arms at them, (2) Assaulted a superior petty officer, to wit: unlawfully push SMSR in the chest with his hands and punch SMSR in the face with his fist, violation of UCMJ, Article 134 (2 specs):  (1) Wrongfully communicate a threat to SMSR, to wit: "I am going to kill you"., (2) Wrongfully communicate a threat to SMC, to wit: "Fuck you, I will kill you too".
	Award:  Forfeiture of $480 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

990420:	NJP for violation of UCMJ, Article 92 (6 specs):  (1) Failure to obey a lawful order on 0630, 30Mar99, to wit: wrongfully failing to muster with the restricted personnel, (2) Failure to obey a lawful order on 1800, 1Apr99, to wit: wrongfully failing to muster with the restricted personnel, (3) Failure to obey a lawful order on 2210, 5Apr99. to wit: wrongfully having personal gear in the restricted man's berthing while in a restricted man's status, (4) Failure to obey a lawful order on 0630, 7Apr99, to wit: wrongfully failing to muster with the restricted personnel, (5) Failure to obey a lawful order on 0630, 10Apr99, to wit: wrongfully failing to muster with the restricted personnel, (6) Failure to obey a lawful order on 0640, 14Apr99, to wit: wrongfully failing to muster with the restricted personnel..
	Award: Forfeiture of $480 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

990420:	Retention Warning:  Advised of deficiency (Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
990422:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, to wit: to be in his assigned rack while in a restricted man's status at 2200 hours.
	Award: Forfeiture of $150 per month for 1 month, confinement on bread and water for 3 days.  No indication of appeal in the record.

990820:	NJP for violation of UCMJ, Article 91 (3 specs): (1) Threat with contempt on 29Jul99, to wit: wrongfully throwing his sound-powered phones on the deck and contemptuously turning from Boatswain's Mate Second Class while he was talking to him, (2) Disobey a lawful order on 2200, 29Jul99, to wit: wrongfully failing to report to the bridge, (3) Willfully disobey lawful order on 2200, 29Jul99, to wit: wrongfully walking away from Boatswain's Mate Second Class, violation of UCMJ, Article 113: Wrongfully leaving post on 29Jul99 before he was regularly relieved, violation of UCMJ, Article 134: Wrongfully communicating a threat on 2299, 29Jul99 to Boatswain's Mate Second Class, to wit: saying to him "You write me up and you'll see what happens and I'll go UA faster than you ever seen".
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

990902:	NJP for violation of UCMJ, Article 92 (3 specs):  (1) Failure to obey a lawful order, to wit: by failing to muster with restricted personnel on 0630, 28Aug99, (2) Failure to obey a lawful order, to wit: by wrongfully sleeping in an AIMD berthing on 30Aug99, (3) Failure to obey a lawful order, to wit: by wrongfully sleeping during the workday on 30Aug99, violation of UCMJ, Article 134: Communicating a threat, to wit: by saying to an AN he had better watch his back on 30Aug99.
	Award: Forfeiture of $300 per month for 1 month, confinement on bread and water for 3 days.  No indication of appeal in the record.

990902:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

990902:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990904:	Commanding officer directed discharge general (under 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 990905 general (under 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s representative submitted the following issue: (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.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  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 provided no documentation of his post-service.  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, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service 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 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