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

 ex-ATAA, USN
Docket No. ND02-00019

Applicant’s Request

The application for discharge review, received 010927, requested that the characterization of service on the discharge be changed to honorable.  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 020517.  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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on a couple of isolated but linked incidents, after 26 months of honest and meritorious service.

2.  My discharge was unfair because the offenses committed by me were simply product of a moment of rage and frustration, in which no physical violence at all was premeditated or carried through.

3.  My discharge was unfair because the command failed to recognize the level of emotional turmoil that I was undergoing at the time, for having both of my parents seriously ill.

4.  My discharge was improper because the command ignored repeated time my desire to initiate a hardship discharge based on my parents health conditions.  Slowing creating the hostility that led to my discharge.   

Documentation

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

Copies of DD Form 214 (2)
Letter of Appeal from Applicant (4pgs)
Copies of Enlisted Performance Evaluation Reports (3)
Copy of Commanding Officer's Request for Administrative Discharge (3pgs)
Copy of Applicant's Father Operation Report (2pgs)
Copy of Applicant's Father Discharge Summary (1pg)
Copy of Applicant's Father Preoperative Medical Evaluation (2pgs)
Copy of Applicant's Father Discharge Summary (2pgs)    

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	891017 - 900122	COG

Period of Service Under Review:

Date of Enlistment:  900123		Date of Discharge:  920601

Length of Service (years, months, days):

	Active:    02  04  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  13			AFQT:  66

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASMwb*, SSDR

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

900626:	NJP for violation of UCMJ, Article 109: Property other than military property of the United States Waste Spoilage or Destruction by damaging another service member's car on 900402.
	Award:  Forfeiture of $196.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

900626:	Retention Warning:  Advised of deficiency (Violation of Article 109: Property other than military of the United States Waste, Spoilage, or Destruction, to wit: SNM did on or about 900420, willfully damage another service member's car of an undetermined value, Property of another service member, the amount of said damage being an undetermined value.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900925:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 1230-1305 900913, violation of UCMJ Article 92: Failure to obey a lawful order/regulation on or about 900913.
	Award:  Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

920211:	NJP for violation of UCMJ, Article 91 (2 Specs), Spec 1: Disrespectful in language toward a superior petty officer on 920116, Spec 2: Disobeyed a lawful order on 920116; violation of UCMJ Article 92: (2 Specs), Spec 1: Dereliction in performance of his duties in that he failed to remain awake on 920115, Spec 2: Dereliction in performance of his duties in that he failed to secure Hazmat Supply Locker and Log Book and maintain his position at desk at 920123; violation of UCMJ Article 107: Logged in False Official Statement on 920123.
	Award:  Forfeiture of $200.00 pay per month for 2 months, reduction to E-2.  No indication of appeal in the record.

920214:	Retention Warning:  Advised of deficiency (Dereliction of Duty: a violation of UCMJ Article 92, Unauthorized Absence, a violation of UCMJ Article 86, and Making a False Official Statement, a violation of UCMJ Article 107, for which you were awarded CO's NJP on 920211), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920318:	Psychiatric evaluation indicates applicant was diagnosed as having a personality disorder, severe, EPTE, which renders him unsuitable for further military service.  The medical officer felt that he was not suicidal or homicidal, but if retained in the naval service, the risk of his acting out would increase and he could become a risk to himself and others.  Administrative discharge was strongly recommended as expeditiously as possible.  

920514:	The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge [Extracted from case file].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920601 under other than honorable conditions in lieu of a trial by court-martial (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).

Issues 1 and 2 state that the applicant’s discharge was inequitable because it was based on a couple of isolated but linked incidents after 26 months of honest and meritorious service, and the offenses committed were simply a product of a moment of rage and frustration in which no physical violence was carried through.  The applicant’s service was marred by three NJP’s for which the applicant was to be court martialed.  The applicant requested an Other Than Honorable discharge in order to escape trial by court martial.  In doing so he admitted guilt to all charges pending against him.  The Other Than Honorable discharge accurately characterizes the applicant’s service.  The discharge was proper and equuitable.  Relief is denied.

Issue 3 states that the applicant’s discharge was unfair because the command failed to recognize the level of emotional turmoil that he was undergoing at the time, for having both of his parents seriously ill.  The applicant’s emotional turmoil at the time of his misconduct does not excuse his behavior.  The applicant was justifiably held accountable for his actions.  He was given the opportunity to escape court martial by chosing an Other Than Honorable discharge, which he did.  He altimately admitted guilt to all charges pending against him.  The discharge was proper and equitable.  Relief is denied.
 
Issue 4 states that the discharge was improper because the command ignored repeated attempts to initiate a hardship discharge based on his parents’ health conditions, slowing creating the hostility that led to his discharge.  There is no requrement that the applicant’s command grant his request for a hardship discharge.  If the command felt the applicant’s presence was required for reasons of mission completion, then they were within their rights to retain the applicant.  The applicant was held accountable for his misconduct.  The applicant did not provide sufficient evidence to show that the discharge was improper or inequitable.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant 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 recommended. 

Pertinent Regulation/Law (at time of discharge) 

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

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