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

ex-SR, USN
Docket No. ND01-00248

Applicant’s Request

The application for discharge review, received 001227, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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: 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.  In December of 1999 I had an admin. board on my ship to determine if I was going to stay in or not and the board granted that I stay in the Navy and if I have any problems within the next year (2000) that I would be discharged with a general discharged.  I feel that I was wrongfully accused of disrespect to a board of chiefs and I was not seperated with a reasonable discharge.  I respectfully request my discharge to be upgraded under circumstances of misjudgment.

Applicant mark the box that he had listed additional issues at an attachment to the application and none were found.

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)	970110 - 970720	COG

Period of Service Under Review:

Date of Enlistment:  970721		Date of Discharge:  000331

Length of Service (years, months, days):

	Active:    02  08  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  3.00 (2)		OTA:  2.92

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

990819:	NJP for violation of UCMJ, Article 128 Assault OS2 by striking her in the face with his fist on 17Jul99.
	Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  Appealed 880822.  Appeal denied 990913.

990821:	Retention Warning:  Advised of deficiency (Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
990909:	NJP for violation of UCMJ, Article 128: Assault with a deadly weapon.
	Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  Forfeiture of $538 for 1 month and reduction suspended for 6 months.  Restriction and extra duty for 25 days suspended.  No indication of appeal in the record.

991209:	Civil Conviction:  Kitsap County District Court for violation of domestic violence assault.
Sentence: Fined $5000, jail for 1 year and complete certified domestic violence perpetrators treatment program.  Suspended 363 days and $4500 for 2 years.

991229:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction.

991229:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000103:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge general (under honorable conditions) and by a vote of 3 to 0 recommended suspended separation for 12 months.

000223:	Vacate suspended reduction to SR awarded at CO's NJP dated 9Sep99.

000223:	NJP for violation of UCMJ, Article 91: Disrespectful to Chief's Petty Officer on 16Feb00, to wit: by saying bullshit and by slamming the door to the Chief's room; violation of UCMJ, Article 92 (2 specs): (1) Failure to obey a lawful general order, to wit: staying out past 0200 hours on 16Feb00, (2) Failure to obey a lawful general order, to wit: wrongfully refusing to give the sentry his military identification card on 16Feb00.
	Award: Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000224:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction.

000224:	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 

000224:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction.  Commanding officer’s comments (verbatim):  Seaman Recruit (applicant) is being processed for administrative separation due to a Pattern of Misconduct, Commission of a Serious Offense, and Civilian Conviction.  SR (applicant) had an administrative board on 14 January 2000, the board recommended suspended general discharge for 12 months.  However, when the new misconduct came to light I was informed by the Commander, Naval Surface Group Pacific Northwest to reprocess SR (applicant) due to the continue misconduct.  His actions have been contrary to good order and discipline and continues to clearly warrant a discharge under Other Than Honorable conditions.  Accordingly, I most strongly recommend that SR (applicant's) discharge be characterized as Other Than Honorable.

000314:	COMCARGRU SEVEN 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 000331 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, discretion, or “circumstances of misjudgment” associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, the applicant clearly was disrespectful to the chief’s board and violated a lawful written order. The applicant’s other than honorable discharge is warranted.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  The applicant must be aware that 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.  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, may be considered by the NDRB.  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 highly recommended.

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 “afls10.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