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

ex-SA, USN
Docket No. ND01-00263

Applicant’s Request

The application for discharge review, received 010105, 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 010601.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To whom it may concern:

My name is (applicant) on February 19, 1991 I was discharged from the Navy.  With your help I am requesting a change of discharge to general under honorable conditions.  As you are going to see when I joined the navy I was very young and immature.  I came from a small town where there were less than five thousand people in it.  At that time all I knew were two things: I wanted to join the service and see the world.
When I got to the fleet I had no clue what was coming, I never regret joining the navy it was the best decision I ever made.  But I made a few bad decisions while in there also. I went to the Captains Mass two or three times which I did deserve the punishment.  I was very loyal and determined to make the Navy my career.
Please review my qualification sheet and my evaluations.  The last set of evaluations is when I was separated from the command and they were not very fair.  All I wanted to do was to learn everything I could while I was there. On the day of the accident, Seaman C_, two others, and myself were standing in line at the ships store.  Seaman C_ has an argument with another sailor and was very disrespectable.  I was the senior person there at the time and I told Seaman C_ to apologize to the other person.  We had a couple of words, I told him to drop it at this time, and I will talk about it later that day. An hour or so later, I went to Seaman C_ work quarters which were mine also.  I was (TAD) to supply at this time.  I went down to level three where he was early in the day.  He wasn't there but his radio was on so I waited.  There were two shipmates on the top level, I told them to tell Seaman C_ that I was on level three waiting for him if they saw him.  Around 10- 1 5 minutes later I heard someone coming down the ladder.  I had my back towards him while I was listening to the radio.  When he came down to the top of the ladder of level three, I saw that it was Seaman C_ and I spoke to him.  He replied, "Wait a minute I am counting pallets.  At this time he leaned down to look for something at that time he must have lost his handling on the chain going down with the ladder way and fell onto some pallets.  When I got to him, I picked him up and noticed he was bleeding badly out of his mouth and nose.  I looked up and saw the two shipmates came over to see what happened.  I told them to go to medical and tell them man down.  At that time I helped him with the bleeding and helped him up three levels to the main deck.  That was the last time I saw Seaman C_ until I was in Norfolk waiting discharge. After C_ went to medical, I had to go on watch on the bridge.  While I was on watch Seaman C_ was flown off the ship.  About an hour later I was called to medical where I was met with the XO in the exam room.  The corp man left the room and shut the door; at that time the XO got in my face and said that I was going to I I worth prison for this.  I got scared.  He stated that C_ said that I hit him and the other two shipmates said the same.  I told him that it wasn't true; that they never saw what happened because they looked down and asked me what happened.  I left medical at that time and went straight to my rack.

  My brother was on the same ship and he came looking for me after he heard what had happened.  He found me crying me to rap this up. While I was on an unrep station I was called to the Chaplin's office, where I met a Chief Petty Officer of the Saratoga.  He told me that the Navy had an open and shut case against me and he was there to counsel me.  He told me to admit to the charge and it would be better off for me to fight it when I got out of the Navy. Enclosed is a Notary Affidavit from Seaman C_ to support my charges.  I am 30 years old now, married and have two children.  I am a general manager for a restaurant and have been there for over 10 years.  Please I respectfully ask you to help me on this change of discharge.  Sincerely,

Documentation

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

Copy of affidavit dated April 23, 1991
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880831 - 880919	COG

Period of Service Under Review:

Date of Enlistment:  880920			Date of Discharge:  910219

Length of Service (years, months, days):

	Active:    02  05  00
	Inactive:  None

Age at Entry:  17 Parent Consent		Years Contracted:  4

Education Level:  10				AFQT:  54

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.90 (2)	Behavior:  2.80 (2)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  1 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890914:	NJP for violation of UCMJ, Article 128 (2 specs): Assault on 9Sep89.
	Award: Forfeiture of $349.50 per month for 2 months, restriction for 30 days, reduction to SR.  Reduction suspended for 4 months.  No indication of appeal in the record.

890914:	Retention Warning from USS SYLVANIA (AFS 2):  Advised of deficiency (Assault (2 specifications).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900531:	Retention Warning from USS SYLVANIA (AFS 2):  Advised of deficiency (Misconduct ashore (ie fighting).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900621:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer on 2Jun90, violation of UCMJ, Article 92: Violation or failure to obey other lawful written order on 2Jun90.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

900621:	Retention Warning from USS SYLVANIA (AFS 2):  Advised of deficiency (Insubordinate conduct towards a petty officer and violation or failure to obey other lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
900918:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful order on 23Aug90, violation of UCMJ, Article 117: Provoking speeches or gestures on 23Aug90
	Award: Forfeiture of $100 per month for 1 month, restriction for 20 days.  Restriction suspended x 5 days.  No indication of appeal in the record.

910119:	NJP for violation of UCMJ, Article 128: Assault, aggravated with a dangerous weapon, means or force on 8Jan91.
	Award: Forfeiture of $422 per month for 2 months, confinement on bread and water for 3 days, reduction to SA.  No indication of appeal in the record.

910119:	USS SYLVANIA (AFS 2) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

910119:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements.

910121:	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. 

910128:	CNMPC 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 910219 under other than honorable conditions for misconduct due to a pattern of misconduct (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 the applicant’s issue, the Board found that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.  The applicant has an extensive history of assault and fighting prior to and during his naval service.  The applicant had three NJP’s before his aggravated assault and three retention warnings in a one year period.  Any of these NJP’s could have resulted in an other than honorable discharge.  Relief denied.

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 (E).  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) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ A PATTERN OF MISCONDUCT. 

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