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

 ex-SR, USNR
Docket No. ND02-00334

Applicant’s Request

The application for discharge review, received 020128, 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 020912.  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

The only issues I have at this time is to humbly ask for forgiveness in my actions as a young marine personnel.  I wish to have my discharge upgrade, so that I may be able to render my services to a Country that protects my family day to day. Prior to the incident my behavior and thought process was questionable based on none participation of attending the class I was assigned to.  I was considerate AWOL because I wasn't present during class, but I was on base the entire time.  Nevertheless I was wrong and didn't want the guidance that was given to me. The day of the incident I had just returned AWOL from the east coast on a 3-1/2 day road trip.  I was carrying a concealed knife with me the entire trip due to my age and the nature of the trip.  When I approach the base and told the watch duty Officer whom I was, immediately I was detained and waiting for someone to come a verify my status and take me to the barracks.  The time pasted and about two or three hours I received a phone call on the quarterdeck phone from a detained military female person.  I was call to the front by the gentleman on watch and the phone was given to me, so I proceeded to talk for about five minutes.  The Chief Petty Officer (not sure of rank) told me to get off the phone, in returned I told him to make me.  Immediately after I said that I knew it was the biggest mistake I could have made.  I continued to talk with my back towards him and I felt a firm hand on my shoulder.  I turned around and took a step back, that's when he came toward me and physically grab me with both hands.  I let the phone go, shook myself loose and pulled out my knife from my sock.  Once I took the knife out I began to swear very loud and very aggressively.  Being stupid and afraid I had allowed myself to lose control and make this request by the Senior Officer bigger than it should have been.  One of the guys told me to calm down and give him the knife, which I did without hesitation.  While waiting for the military officers I was beating myself up mentally thinking of what did I just do.

I believe truly the Chief Petty Officer grabbing me wasn't his fault,- I provoke him, made a challenge of authority and disrespected him.

Since the incident I have stayed out of trouble and learned that your action will determine the outcome of your life.  I'm successful in a sense of being healthy; bless with a son and a future husband this October.  I know without the experience of being in a military environment this incident could have been worst as a civilian and more costly to my life.  I have learned to think before I react and speak, which comes from years of embarrassment and heartache. My primary reason(s) for wishing for an upgrade is to, one is to complete what I set out to do years ago.  I always felt incomplete because of this incident and wish to continue it in a reserve status.  Most important of all to say to the United States Navy I was wrong and it took years to ream I made all those chooses for myself The excuses I've believe to be the reason for my dismissal wasn't justifiable.  I'm the one to blame, I'm truly sorry for wasting the time spent on me by the Government and I without any doubt wish to be pardon and given another chance to redeem myself and pay back to society.

Documentation

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

Copy of DD Form 214
Character Reference Letter from Lt. T.R. B____ City of Greensboro Police
Letter of Recommendation from C_____ W____
Character Reference Letter from S___ L____
Letter of Recommendation from L____ B____
Letter of Recommendation from A____ M____
Resume (2pgs)
Copies of Service Related Documents (14pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  870924		Date of Discharge:  890503

Length of Service (years, months, days):

	Active:    01  02  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  40

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  32 

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:

880915:	Retention Warning:  Advised of deficiency (You were found guilty at OIC NJP this date of Article 92 and 86 (2 specs)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880915:	NJP for violation of UCMJ, Article 86: On or about 0745, 880907, did absent himself from his organization until 0930, 880909(2days/S), violation of UCMJ Article 86: On or about 1545, 880912 member failed to go to appointed place of duty, violation of UCMJ Article 92: On or about 0900, 880909, disobey a lawful award.
	Award:  Forfeiture of $145.00 pay per month for 1 month, restriction and extra duty for 5 days.  No indication of appeal in the record.
	
890303:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (3 Specifications), Unauthorized absence from organization 881219 until 890112.  Charge II: violation of the UCMJ, Article 91: Disrespectful in language towards a first class petty officer on 890112.
	Findings:  to Charge I and specifications 1,2 and 3 thereunder, guilty.  To Charge II and specification thereunder, guilty. 
	Sentence:  CHL for 4 months, forfeiture of $460.00 pay per month for 2 months.
	CA 890328:  Sentence approved and ordered executed.
	
890406:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, to wit: Disobedience of a lawful order, disrespectful in language toward a superior petty officer and assault with a dangerous weapon, to wit: A knife.

890406:  	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.

890413:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, to wit: Disobedience of a lawful order, disrespectful in language toward a superior petty officer and assault with a dangerous weapon, to wit: A knife. 

890421:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890424:	Released from confinement and restored to full duty status.  Retained onboard for further disposition and administrative processing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890503 under other than honorable conditions for misconduct due to 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 Applicant has asked for forgiveness for his actions.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  In addition, the Applicant should provide credible evidence of drug and alcohol free living.  The Applicant failed to provide any of these documents.  

Concerning a chance to reenlist, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry or reinstatement into the naval service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 
11 Jan 89 until 24 May 89, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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