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

 ex-HA, USN
Docket No. ND02-00797

Applicant’s Request

The application for discharge review, received 020515, 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 did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member proffers that it is inequitable for him to have been discharged under other than honorable conditions when the judge at his court martial felt that he had potential for further service and recommended retention.  On this basis, his opines that recharacterization of his service to Honorable is warranted. 

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

DD Form 149, dated August 17, 2001
Letter from Applicant's mother, dated April 23, 2002
Twenty-four pages from Applicant's service record
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990729 - 990816	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990817		Date of Discharge:  010817

Length of Service (years, months, days):

	Active:    02  00  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  10			AFQT:  35

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.00

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, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000411:	Retention Warning:  Advised of deficiency (Failure to obey lawful general regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from Commanding Officer's letter dated 010719.]
	
000626:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, petty officer, or non-commissioned officer on 000615, violation of UCMJ, Article 92: Failure to obey order or regulation on 000615.
	Award: Forfeiture of $563 per month for 2 months, restriction for 14 days and extra duty for 6 days, reduction to HA.  Forfeiture suspended.  No indication of appeal in the record.

010710:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification 1: Fail to go to appointed place of duty at 1700, 010418, to wit: the front of Naval Hospital Bachelor Enlisted Quarters, Building H-96.
	Specification 2: Fail to go to appointed place of duty at 1215, 010416, to wit: Naval Hospital Legal Office, Building H-100.
	Charge II: violation of the UCMJ, Article 91:
	Specification 1: Treat with contempt and was disrespectful in language toward Ships Servicemen 2nd Class by saying to him "don't piss me off" on 010212.
	Specification 2:Treat with contempt and was disrespectful in language toward Store Keeper 3rd Class, by calling him "a bitch" and saying to him "fuck this" on 010412.
	Specification 3: Treat with contempt and was disrespectful in language toward Ships Servicemen 2nd Class, by saying to him "fuck this" on 010412.
	Specification 4: Treat with contempt and was disrespectful in language toward Mess Management 2nd Class, by saying to him "I don't have to do anything you ask me to do, on 010412.
	Charge III: violation of the UCMJ, Article 92:
	Specification 1: Having knowledge of a lawful order issued by Ships Serviceman 2nd Class, U.S. Navy, to stop playing pool and assist in loading furniture into a government vehicle, an order which it was his duty to obey, did at Naval Hospital Bachelor Enlisted Quarters Building H-96, Camp Pendleton, CA, on or about 18 April 2001, fail to obey the same, by making facial expressions and continuing to play pool.
	Specification 2: Having knowledge of a lawful order issued by Store Keeper 3rd Class, to stop playing pool and assist in loading furniture into a government vehicle, an order which it was his duty to obey, did at Naval Hospital Bachelor Enlisted Quarters Building H-96, Camp Pendleton, CA, on or about 18 April 2001, fail to obey the same, by making facial expressions and continuing to play pool.
Specification 3: Having knowledge of a lawful order issued by Ships Serviceman 2nd Class, to stop playing pool and assist in loading furniture into a vehicle, an order which it was his duty to obey, did at Naval Hospital Bachelor Enlisted Quarters Building H-96, Camp Pendleton, CA, on or about 18 April 2001, fail to obey the same, by making facial expressions and continuing to play pool.
	Charge IV: violation of the UCMJ, Article 134:
	Specification 1: Orally communicate to Store Keeper 3rd Class, certain indecent language, to wit: calling him a "bitch", on 010418.
	Specification 2: Orally communicate to Store Keeper 3rd Class, certain language, to wit: "fuck this" on 010418.
	Finding: to Charge I, specification 1, Charge II, specifications 1, 2 and 4, Charge III, specification 2 and 3, Charge IV (changed to Article 117), specification 1 and 2, thereunder, guilty.
Finding to Charge I, specification 2, withdrawn, Charge II, Specification 3, not guilty, Charge III, specification 1 withdrawn, Charge IV not guilty of Article 134 but of a lesser included offense of Article 117.
	Sentence: Forfeiture of 1/2 months pay for 1 month, confinement for 30 days, reduction to HR.
	CA action 010722:  Sentence approved and ordered executed.
	
010719:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and summary court martial conviction.  Commanding Officer’s comments (verbatim):  [HA A_ (Applicant) was found guilty at Summary Court-Martial of failure to obey lawful order, unauthorized absence, and disrespect to a petty officer.  Based upon the above information, it is evident that HN A_’s (Applicant) behavior is clearly service discrediting and is unacceptable for continuing naval service.  As part of a pretrial agreement to his summary court-martial, HA A_ (Applicant) waived the administrative separation process.  Therefore, I direct HA A_ (Applicant) be separated with a service characterization of Other than Honorable and a RE-4 reenlistment code.] 

010720:	Vacate suspended forfeiture awarded at CO's NJP dated 000626.

010724:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Applicant refused to sign.

010724:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  Applicant refused to sign.

010808:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010817 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A Commanding Officer is under no legal obligation to adhere to the retention or discharge recommendation resulting from a Summary Court Martial.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service record is marred by award of one non-judicial punishment (NJP) and 1 Summary Court Martial (SCM) followed by the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate.  Relief denied.

Issue 2:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until Present, Article 1910-142  [formerly 3630605]. SEPARATION 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