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

 ex-SA, USN
Docket No. ND02-00261

Applicant’s Request

The application for discharge review, received 020114, 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 designate a representative on the DD Form 293.  In the acknowledgment letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  The Board was later informed by the Applicant of his incarceration. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

TO THE HONORABLE REVIEW BOARD HEREIN:

Comes now, (J_ G_ M_), Applicant (hereinafter known as Applicant), Pro-Se, file this, his, APPLICATION FOR REVIEW OF DISCHARGE/DISMISSAL FROM THE UNITED STATES ARMED FORCES, APPLICANT'S BRIEF, Pursuant TITLE 10 UNITED STATES CODE § 1553, and in support therefore, would very respectfully show unto this Honorable Board as follows:

PROCEDURAL HISTORY

Applicant has not perfected and effected an Appeal, this is the Applicant's instant application.

STATEMENT OF FACTS

The record will reflect that your Applicant was discharged from active status/service on October 23, 1986.  Such dismissal and characterization of service were initiated by an administrative separation, DUE TO MISCONDUCT-COMMISSION OF A SERIOUS OFFENSE.  The incident(s) in question had occurred on July 27th and 29th, 1986, aboard the U.S.S. New Jersey (BB-62), while at sea.
Commanding Officer's Non-Judicial Punishments/Proceedings (Article 15) were conducted on August 23, 1986.  OFFENSES: Ch. I. Art. 128 (2 specs.).  Spec I. Unlawfully grab another crew member around the neck on 27 Jul 86.  Spec. II.  Unlawfully hit another crew member on the head with his fist on 29 Jul 86.  Ch. II. Art. 134.  Wrongfully communicate a threat to another crew member to kill him on 29 Jul 86.

PUNISHMENTS AWARDED: 45 Days Restriction, 45 Days Extra Duty, Forfeiture of $358.00 Pay Per Month for Two (2) Months, Reduction in Rank to Seaman Apprentice.

DESIGNATION OF ISSUES

A.  REASON FOR SEPARATION.
B.  NON-JUDICIAL PUNISHMENTS.
C.  ENLISTED PERFORMANCE EVALUATION.
D.  CHARACTERIZATION OF SERVICE.
E.  COMMANDING OFFICER'S STATEMENT.
F.  CONSTITUTIONAL VIOLATIONS.

ARGUMENTS AND AUTHORITY OF ISSUES

A. REASON FOR SEPARATION:

Applicant contends that the reason for separation processing are quite inconclusive to substantiate a valid conviction.  The statement made against your Applicant in light of the matter.  See: Exhibit A (pertinent in part) "….SA (Applicant) committed an unprovoked, violent attack on a fellow crew member..." this statement shows the partiality of military justice.  It seems that witnesses were not utilizes to the fullest to focus in on the picture that Seaman Apprentice J_ E_, had truly instigated the incident in question.
Applicant respectfully requests that this Honorable Board grants an opportunity for the Applicant to review the Government's File, concerning the Non-Judicial Proceedings, to rebut any and all inconsistent statements against the Applicant.  Applicant respectfully request that the Government's File, containing all the non-judicial proceedings/punishments, administrative board recommendations and supporting documentation, be forwarded for review.  Such request of the Government's File (copy), should be forwarded to the custodial authority of Mr. T_ R_, Law Library Supervisor, N_ J_ N_ Unit, Texas Department of Criminal Justice-Institutional Division, 9055 Spur 591, Amarillo, Texas 79107-9696.
Whereas, such Government's File would be available for review by this Applicant, while the file is maintained under the custodial authority of this State's (Texas) Agency (TDCJ-ID).
Applicant is entitled to the Government's File, the authoritive precedence to access such evidence (exculpatory or mitigating) lies within the frame of the principles of Due Process and Equal Protection privileges "GUARANTEED" of the 5th and 14th Amendments of the United States Constitution.
Applicant respectfully moves this Honorable Board to reveal all exculpatory evidence or evidence which mitigate the discharge of the Applicant.

B.  NON-JUDICIAL PUNISHMENTS:

Applicant's record reflects a previous infraction which an Article 15 hearing was conducted on 12 Nov 85.  See:  Exhibit B, § 5, A.  Applicant would respectfully move this Honorable Board that such previous Article 15 punishments are minor, isolated offenses.  In light of the incident in question, Applicant asserts that the actions of his youth were quite impaired due to his psychological dependence on alcohol, effecting his life skills within the military.  Applicant truly understands that individuals excel far more than others mentally, physically, emotionally and spiritually.  The common goals of achievements for a young individual in civilian life are far more obtainable, while those goals in the military are limited to due other factors.  Applicant respectfully notes before this Honorable Board that be regrets his actions had taken a turn.  Accordingly, for the above stated reasons, although not limited thereto, the Applicant is entitled to relief, thereby reviewing Applicant's APPLICATION FOR THE REVIEW OF DISCHARGE OR DISMISSAL FROM THE ARMED FORCES OF THE UNITED STATES - APPLICANT'S BRIEF.  The Government may apply the law differently only based on distinctive factual circumstances if the distinction is rationally related to a legitimate Government purposes.  When, however, the distinction is based on a classification/characterization or effects the denial of a fundamental right.  The Constitutional scrutiny sharpens its focus to determine whether the classification/characterization is tailored to serve a compelling Governmental interest.  The Touchstone of Due Process of Law is protection of the individual (Applicant's) against arbitrary action of the Government.

C.  ENLISTED PERFORMANCE EVALUATION.

Accordingly to the record of active service.  Applicant's enlisted performance evaluation were out of chronological order.  Such entries reflect in favor of your Applicant to receive the recommended characterization of Honorable.  See: Exhibit C.  See also Naval Military Personnel Manual, Article 3.610300 as the authority of this issue.  Furthermore, your Applicant would respectfully state for the record that he was encouraged to enhance his experience to seek a rate designation [Boatswain's Mate] for advancement.  In addition, please review Applicant's Basic Data, Military Educational History, Personnel Advancement Requirement, Performance Test, Military Awards History.

Your Applicant respectfully highlights as follows: [emphasis added]:

A.  BASIC RECORD DATA: CURRENT ENLISTMENT Four (4) Years - Active Duty - 13 Oct 83 Martial Status: Single Total Service Active:  Two (2) Years, -10 Months Total Service Inactive: Seven (7) Months

B  MILITARY EDUCATIONAL HISTORY:  Hospital Corpsman 3 & 2 [3.78] 05 May 84 Military Requirements Petty Officers [3.85] 12 Jun 84 Boatswain's Mate 3 & 2 [3.82] 27 Nov 84 Basic Military Requirements [3.61] 13 May 86

C.  PERSONNEL ADVANCEMENT REQUIREMENT: Boatswain's Mate 3 & 2 23 Jun 86

D.  PERFORMANCE TEST: Military Leadership/E4  13 Jun 84

E.  MILITARY AWARDS HISTORY: Humaitarian Service Medal May 84 [Operation Boat People] Battle "E" Award [USS Blue Ridge LCC-19] 31 Dec 84 Navy "E" Award [USS New Jersey BB-62] 30 Jun 86 Sea Service Deployment Ribbon [2].

In light of the matter, your Applicant's record will reflect an efficient cause of duty, been awarded such achievements in preparation of advancement in rank.  Your Applicant respectfully request that this Honorable Board would correct the record concerning any and all documentation of the former servicemember's record before reviewing the application.  Applicant's reflects that his availability to perform his tasks, still shows a commitment to DUTY, HONOR, and COUNTRY.
Furthermore, this Applicant would like to ask a question in reference to two points of interest noted in the records (1) The entry of 23 Jun 86 states a Personnel Advancement requirement that would be contradictory to the latest Enlisted Personnel Evaluation. (2) The recommendation of the Navy "E" Award aboard U.S.S. New Jersey BB-62 on 30 Jun 86.  The truth of the matter is that the entries would require the above-average performance to be recognized by the Command and its senior staff.
Applicant asserts -that his recent transfer aboard U.S.S. New Jersey BB-62, would take time to adjust to format the basic daily routine both in-port and at sea.  Fact is that the short duration aboard U.S.S. New Jersey BB-62, had made a possible impression to be awarded such achievements.

D.  CHARACTERIZATION OF SERVICE.

The record reflects that Applicant's acknowledged that if separation is approved, the separation authority recommendations are characterization of service may be under Other Than Honorable Conditions  See:  Exhibit D.  Applicant contends that the record is taken out of context in light of the guidelines aforementioned in 32 C.F.R., Part 41, App. A., Part 2.C.2.a.l. (Military Regulation) which instructs the Military to classifies/characterizes discharges on the basis of the quality of the Applicant's service records.  "…Selection of a proper grade centers on a member's quality of service, which, in turn, involves reference to "standards of acceptable personal conduct and performance of duty...."  Id.  that assessment is adversely affected by conduct that is disruptive or discrediting to the military."  Gay Veteran's Ass'n.  Inc. v. Secretary of Defense, 850 F.2d 764, 766 (D.C. Cir. 1988).
Your Applicant contends that the incident for which he was involved, after serving approximately 3 years of active duty and later dismissed from the United States Navy, was an isolated incident, that had not received such notoriety as the "Tailhook” or the "U.S.S. Iowa" mishap.  Even such individuals had been reprimanded with less astringents and remanded into active service to maintain the cover-up under the watchful of Uncle Sam.
Those that were expendable were discharged under honorable conditions, given benefits, and lived normal lives. As for your Applicant, to maintain the silence of his actions was shunned out without anything, but his name and memories of his duty for the Great United States of America, in conjunction of the military regulation.  Your Applicant asserts that the incident was not as discrediting or disruptive.  In citing, Gay Veteran's Ass'n., Inc. v. Secretary of Defense, 668 F. Supp. 11, 16 n. 2 (D.D.C. 1987) "Plaintiffs note correctly that a less-than-honorable administrative discharge must be based "upon the record of [the member's] military service."  Harmon v. Brucker, 78 S.Ct. 433, 435 (1958); accord Roelofs v. Secretary of the Air Force. 629 F.2d at 598 ("ROELOFS").  In other words, a less-than-honorable characterization of service may be issued only where the conduct that forms the basis of the derogatory characterization is contained in the service-member's military record and reflects accurately "the nature of the service rendered."  Harmon v. Brucker, 78 S.Ct. at 435.
Applicant contends that the records only reflects what the Government wishes to expound of the negative nature of the member's service rendered while on duty.  True, as it may seem in light of the circumstances, what is the given ratio of members of the Armed Forces reflects a few minor infractions, even of this magnitude to obtain GOOD CONDUCT SERVICE, while on and off duty.  See: Sanders v. United States, 594 F.2d  804, 813 (1979) (pertinent in parts): "…Whether the claim is based on legal error or material factual error, is thus immaterial in regard to our power to review.  It may be relevant.  However, to the nature of proof necessary for plaintiff to recover…"  "…Since amendment of  28 U.S.C. § 1491 by Pub. L. No. 92-415 in 1972.  The relief afforded may also include reinstatement and correction of records.  To recover for failure to correct an alleged injustice, such as perhaps based on gross material error of fact or an action contrary to all evidence, it must be proved that such failure was arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequences.  In such events, the abuse of administrative discretion rises to the level of legal error which merits judicial relief.  These are comparatively rare cases.  See: e.g., Doggett v. United States, 207 Ct. Cl. 478, 483 (1975); Skaradowski v. United States, 471 F.2d 627, 200 Ct. Cl. 488 (1973); Hertzog v. United States, supra; Prince v. United States, 119 F. Supp. 421, 127 Ct. Cl. 612 (1954).
Your Applicant notes discrepancies of the record, again only reflecting the negative nature of service rendered to actually prove what needs to be shown.  As accordingly to the case precedence and military regulation grounded as law, Applicant request that the records be corrected, foremost, then review the former service-member's actual performance of duty, so relief of the injustice may prevail, not only for this former service-member, but for those that live in silence of dishonor.
Applicant truly understands that procedures are quite different from Military Justice to Civil Law, but both are based with the framework of the UNITED STATES CONSTITUTION.

E. COMMANDING OFFICER'S STATEMENT:

Applicant's contends the statement made by Captain W. L_ G, Commanding Officer, U.S.S. New Jersey BB-62.  See: Exhibit E & E-1.  The incident in question states the senseless and vicious attack on a fellow crew member was unprovoked.  This is far from the fact, especially when Seaman Apprentice J_ E_ had made a statement to instigate the confrontation.
Applicant would respectfully cite the following regulation. Title 10, U.S.C. § 938, even though the Applicant is a layman in the applications of Military Law, and had not the resources to perfect an appeal.  This Applicant respectfully exercises the authoritive regulations to correct an error, and foremost the injustice made by Captain W. L_ G_.  Your Applicant would respectfully invoke the services of the following: NAVAL COUNCIL OF PERSONNEL BOARDS, SECRETARY OF THE NAVY, AND THE SECRETARY OF DEFENSE.  But of the lack of such resources, and exercises the UNITED STATES CONSTITUTION to be allowed to redress the wrong by the former commanding officer.  Once again, citing, Sanders v. United States, 594 F.2d 804, 813 (1979)  "… Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith."  Savio v. United States, 213 Ct. Cl. 737 (1977); Boyd v. United States, supra. 207 Ct. Cl. at 9, Jordan v. United States, 205 Ct. C1. 65 (1974); Brenner v. United States, 202 Ct. Cl. 678 (1973), cert. denied. 419 U.S. 831, 95 S.Ct. 419, 42 L.Ed.2d 56 (1974); Biddle v. United States, supra, 186 Ct. Cl. at 104; Hawkins v. United States, 183 Ct. Cl. 32 (1968); Ward v. United States, 178 Ct. Cl. 210 (1967).
Thus under the foregoing authorities as well-grounded within the United States Constitution has created a reasonable expectation within this Applicant to exercise his privileges to gain proper jurisdiction to modify and correct the error, injustice, although not limited thereto, the Applicant is entitled to relief.

F.  CONSTITUTIONAL VIOLATIONS:

The United States Constitution affords the opportunity for all its citizens to exercise its privileges, whether a civilian or a member of the Armed Forces.  See: Doe v. United States, 132 F.3d 1430 (Fed. Cir. 1997)  "Men and women in Armed forces do not leave constitutional safeguards and judicial protection behind when they enter military service."
Applicant asserts the following violations Had occurred while the so called investigation and non-judicial punishment/proceedings had taken place.

(1) Denied Effective Assistance of Counsel.  (II.) Review evidence to prepare proper defense.  (III.) Denied witnesses.  (IV.) Denied cross-examination of witnesses.  (V.) Denied impartial and fair hearing.

Applicant asserts, though a layman, at the time of this incident, he invoked his privileges, especially concerning the serious commission of offenses at hand.  The record reflects that Applicant did not wish to consult with counsel.  Applicant asserts counsel representative had afforded his services/representation totally on behalf of the Government. Due to such advocacy by counsel, the presentation of the case was quite partial for the Government.
Applicant asserts that he can not recall ever reviewing the evidence and other supporting documentation being used against him, as well on his behalf.
Applicant asserts that witnesses were not present during his non-judicial punishment/proceeding to present evidence and testimony on behalf of the Government, and foremost for the Applicant. in the essence of such allegations, Applicant was not, afforded to cross-examine the witnesses, or suppress any and all evidence supporting the offenses.  Applicant alleges that if he was afforded to cross-examining Seaman Apprentice J_ E_ (2nd Party) of the incident, evidence/testimony would been disclosed, that Seaman Apprentice J_ E_, had indeed instigateD the incident.
Furthermore, Applicant alleges that his former Commanding Officer had abused his discretion/authority by minimizing the facts of the incident, conducted a non-judicial punishment/proceeding to avoid a Court-Martial, so that the true of the matter would not discredit the authority of his Commanding Officer.  Applicant asserts that application to him of procedures different than those in effect at the time of his offense, arbitrarily infringed upon substantial personal rights and changes the legal consequences of the non-judicial punishment/proceeding.  Further, is support of Applicant's assertions, he directs the Board's attention to the Supreme Court holding of Weiss v. United States, 114 S.Ct. 752, 769 (1994):

Justice G_, concurring.

The care of the Court has taken to analyze petitioner's claims demonstrates once again that men and women in the Armed Forces do not leave constitutional safeguards and judicial protections behind when they enter military service.  Today's decision- upholds a system of military justice notably more sensitive to due process concerns then the one prevailing through most of our country's history, when military justice was done without any requirements that legally trained officers preside or even participates as judges.  Nevertheless, there has been no peremtory rejection of petitioner's pleas.  Instead, the close inspection reflected in the Court's opinion confirms:

"[I]t is the function of the Courts to make sure, in cases properly coming before them, that the men and women constituting our Armed Forces are treated as honored members of society whose rights do not turn on the charity of a military commander.  ...A member of the Armed Forces is entitled to equal justice under law not a conceived by the generosity of a commander but as written in the Constitution..."Winters v. United States, 89 S.Ct. 57, 59-60, 21 L.Ed.2d 80, 84 (1968)(DOUGLAS, J., in chambers).

See also: Frontiers v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Harmon v. Brucher, 355 US 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Crawford v. Cushman, 531 F.2d 1114 (CA2 1976).

Consequently, in determining the Constitutionality of an act, its necessary to look both to the meaning of the act, and the meaning of the Provisions of the Constitution.  See: Gay Veteran's Ass'n. Inc. v. Secretary of Defense, 668 F. Supp. 11 (D.D.C. 1987)  "...Plaintiffs are indeed correct when they note the case law prohibits the military from discharging a member other than honorable conditions unless there is a showing that the conduct on which the discharge was based impaired the service member's performance of military duties or otherwise affected adversely the service. e.g., Harmon v. Brucher, 355 US, at 583, 78 S.Ct, at 435; see also, Kennedy v. Secretary of the Navy, 401 F.2d 990, 991-92 (D.C. Cir. 1968)("KENNEDY"); Roelofs, 628 F.2d at 597 ("but the military may reasonably and properly look beyond the performance by a particular serviceman of his daily chores, and it may take into accounts in diminishing the overall effectiveness of the military.")  Nonetheless, the Courts fails to perceive any conflict between the established principles of discharge characterization and the guidelines set forth at 32 C.F.R. Part 41, App. A Part 2.C.2.

CONCLUSION

Applicant deposes to this Honorable Board that this Application For The Review Of Discharge Or Dismissal From The Armed Forces Of The United States-Applicant's Brief, is not drafted on a mere whim for the relief herein, but filed in good-faith for the relief he's entitled, in view/light of the sound Reasoning(s), of the respective Courts, as well as the rulings, holdings, statutory and constitutional laws, as afforded by Our U.S. Constitution.

PRAYER

WHEREFORE, PREMISES CONSIDERED, APPLICANT respectfully moves and prays that this Honorable Naval Council of Personnel Board, acting in tradition as guardian of rights, afford Applicant, general and special, a matter of law, to establish and place on the record the facts, which involve mixed questions of facts and laws.  thereby, granting his application and all other things requested.

RESPECTFULLY SUBMITTED, (Signed by the Applicant)

Documentation

The Board was unable to obtain Applicant's service or medical record.  The Applicant provided the following documentation to be considered:

Copy of DD Form 214
Applicant's Motion of Review For Post-Service Conduct/Procedural History
Applicant's Résumé (5 pages)
Certificate of Achievement, Windham School System, Vocational Education Department (Painting & Decorating (Wall & Floor Trades)) dtd Oct 21, 94
Certificate of Merit, Rhema Correspondence Bible School, dtd Nov 94
Certificate of High School Equivalency dtd Dec 6, 94
Alvin Community College Grade Report (Spring 1995)
Certificate of Achievement, Windham School System, Vocational Education Department (Drafting) dtd Dec 6, 95
Certificate of Legal Assistant/Paralegal, Blackstone School of Law, dtd Jul 8, 98
Blackstone School of Law, Grade Report, Feb 24, 97 – Jul 8, 98
Certificate of Completion (A Year of Walking the Sacred Wheel)
Certificate of Award, Windham School District, OTJ in Butcher, All Round (Production) dtd Aug 20, 01
Applicant's Conclusion/Unsworn Declaration, Certificate of Service, dtd Sep 6, 02
Copy of DD Form 214 (duplicate)
Applicant's Birth Certificate
Applicant's Military Enlisted Performance Record
Applicant's Military Enlistment Contract (4 pages)
Applicant's Unsworn Declaration, Certificate of Service, dtd Aug 16, 02

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	830328 - 831012	COG

Period of Service Under Review:

Date of Enlistment:  831013		Date of Discharge:  861023

Length of Service (years, months, days):

	Active:    03  00  11 (Doesn't exclude lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  Cannot Verify	AFQT:  Unavailable

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.0 (3)		OTA:  3.4

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" Ribbon, Battle "E" Ribbon, HSM, SSDR(2)

Days of Unauthorized Absence:  24

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:

851112:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized absence from appointed place of duty, to wit: sickbay on 28 and 31 Oct 85.
	Award:  30 days correctional custody, forfeiture of one-half months pay per month for 2 months, reduction to pay grade E-2 (RIR suspended for six months).

860509:	Completed ARS, but Applicant continued drinking alcohol and is not currently participating in command's aftercare program.   

860823:	NJP for violation of UCMJ, Article 128 (2 Specs):  
Specification 1:  Unlawfully grab another crew member around the neck on 27 Jul 86.
Specification 2:  Unlawfully hit another crew member on the head with his fist on 29 Jul 86.
Violation of UCMJ, Article 134:  Wrongfully communicate a threat to another crew member to kill him on 29 Jul 86.
	Award:  Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  

860829:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

860829:	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.  

860829:	Drug/Alcohol Abuse Report indicates Applicant is psychologically dependent on alcohol. 

860904:	CNMPC directed the Applicant's discharge.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 861023 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 the discharge was proper and equitable (C and D).

Issue 1.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge, and does not permit recommending corrections to naval records other than the DD Form 214.  The Applicant may contact the Board for Correction of Naval Records at 2 Navy Annex, Washington, D.C., 20370-5100 to request a correction to his records.  The Board was unable to obtain the Applicant’s service records.  It is the Applicant’s responsibility to obtain documentation that will support any issues he submits regarding the propriety and equity of his discharge.  The Board found no documentation that mitigates the Applicant’s characterization of service.  The Board considers each case upon its own merits, not on the service record of other individual sailors.  The Applicant states his discharge was based on a minor, isolated incident in three years of documented above average service.  While he may feel that his youth and dependence on alcohol were factors that contributed to his actions, the available documentation reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The available documentation is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board found no documentation to support the Applicant’s allegations that his non-judicial punishments were unjust, that his constitutional rights were violated, or that he was unfairly denied his rights concerning his administrative separation.  The Board found that the Applicant’s violation of Articles 128 and 134 of the UCMJ constituted the commission of serious offenses and that the Applicant was properly and equitably separated.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice is evident during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 4/86, effective 
06 Oct 86 until 14 Dec 86), 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 "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