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

ex-SMSN, USN
Docket No. ND02-00107

Applicant’s Request

The application for discharge review, received 011018, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020923.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct- commission of a serious offense, authority: NAVMILSPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.	 This former member opines that his post-service conduct has been sufficiently
creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Eleven Personal Reference Questionnaires dated September 19, 2002, September 18, 2002, September 17, 2002 (4 questionnaires), October 6, 1995, October 5, 1995 (2 questionnaires), and October 4, 1995 (2 questionnaires)
Character reference dated September 20, 2002
Character reference dated February 10, 1997
Character reference dated February 13, 1997
Letter from Fairfax County Public School EASE technician dated September 27, 1995
Letter of appreciation dated April 27, 1994
Letter of appreciation dated November 7, 1991
Letter from Vanguard Services Unlimited counselor dated September 15, 1995
Certificate of completion of Phoenix Program dated November 3, 1993
Certificate of completion dated October 13, 1993
Report of drug screen, dated October 4, 1995
Police record check dated September 27, 1995
Character reference from A_ H_, undated
Letters from secretary of Lake Ridge Parks and Recreation Assoc., Inc. dated June 15, 1995 and November 15, 1995
Copy of certificate of appreciation dated 2001
Letter of appreciation dated June 29, 1990
Letter of appreciation dated February 21, 1997
Letters from Fairfax County Public Schools dated May 3, 2001, April 4, 2001, June 9, 1999, and June 22, 1998
Copy of certificate of completion dated April 3, 2001
Copy of certificate dated April 11, 2001
Copy of official transcript of grades and hours dated June 7, 2001
Copy of certification card
Copy of applicant's business card
Copy of employee performance evaluation dated April 12, 2000 and October 13, 1999
Copy of certificate of appreciation dated April 1999
Certificate of course completion
Copy of certificate of appreciation dated October 1, 1999
Copy of certificate dated April 13, 2000
Copy of certificate dated February 28, 2001
Copy of certificate of completion dated May 30, 2001
Certificate of completion dated July 20, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	841127 - 850403	ELS
		   USNR (DEP)	850430 - 850522	COG

Period of Service Under Review:

Date of Enlistment:  850523		Date of Discharge:  870529

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  25

Highest Rate:  SMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.30 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

861002:	NJP for violation of UCMJ, Article 91: Willful disobedience of a chief petty officer, violation of UCMJ, Article 92: Failure to obey a lawful written order.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

861105:	NJP for violation of UCMJ, Article 86: Absence from appointed place of duty on 1Nov86.
	Award: Extra duty for 20 days.  No indication of appeal in the record.

861126:	NJP for violation of UCMJ, Article 91: Insubordinate conduct.
	Award: Extra duty for 15 days.  No indication of appeal in the record.

870124:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer, violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 117: Provoking speeches or gestures.
	Award: Forfeiture of $50 per month for 2 months, extra duty for 7 days. No indication of appeal in the record.

870124:	Retention Warning:  Advised of deficiency [Failure to obey lawful orders and regulations (specifically dereliction of duty, provoking speeches and/or gestures)], notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870308:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by failure to obey a lawful order and misconduct due to pattern of misconduct as evidenced by the five punishments under the UCMJ during this enlistment.
	
870310:	NJP for violation of UCMJ, Article 116: Riot or breach of peace, violation of UCMJ, Article 117 (3 specs): Provoking speech or gestures, violation of UCMJ, Article 128: Assault upon a petty officer, violation of UCMJ, Article 134: Disorderly conduct.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

870313:	Applicant advised of 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.

870323:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.  Commanding Officer’s comments: applicant's record accurately reflects his failure to make any attempt to adjust to military life.  His service thus far has been characterized by a series of disciplinary infractions that display his refusal to conform to barest standards of behavior.  His work performance has been lackluster at best.  I strongly recommend he be discharged with an other than honorable discharge as soon as possible.  Applicant is presently assigned TAD to Transient Personnel Unit, Subic Bay, R.P.

870328:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970325:	NDRB documentary record review Docket Number ND97-00420 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870529 under other than honorable conditions for misconduct due to the 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 although the discharge was proper and equitable at the time of issuance, it is no longer equitable in light of evidence presented to the Board (C and D).

Issue 1.  The Board found that the applicant’s post-service conduct was sufficiently creditable to warrant an upgrade of his characterization of service to under honorable conditions (general).  The applicant’s successful completion of substance abuse treatment, volunteer service, career progression, and strong references demonstrated that the applicant possessed character and drive that was not evident during his tour of active duty.  However, the Board found that the applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore partial relief is granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective 
15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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