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

 ex-RMSR, USN
Docket No. ND03-00846

Applicant’s Request

The application for discharge review was received on 20030411.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040413.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Issues submitted by Applicant and representative (American Legion):

1.  “(Equity Issue) This former member opines that youth, immaturity and personal problems impaired his ability to serve and was a contributing factor in his misconduct of record.

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:

Copy of Professional Engineer & Land Surveying Engineer-in-Training License
Copy of Bachelor of Science in Engineering Degree from Mercer University
Copy of DD Form 214
Copies of Administrative Remarks (2 pages)
Copy of CNMPC Discharge Authority
Letter from Applicant, dated March 25, 2003
Letter from Jefferson First United Methodist Church, dated June 24, 2003
Character reference, dated July 2, 2003
Character reference, dated June 24, 2003
Character reference, dated August 12, 2003
Character reference, dated August 9, 2003
Copy of Naval Citation
Copy of Certificate of Nomination from The American Legion
Copy of Certification, date June 19, 1994
Letter from Piedmont Baptist Church, dated September 8, 2003
Character reference, dated September 4, 2003
Character reference, dated July 1, 2003
Character reference, dated July 9, 2003
Character reference, dated July 30, 2003
Letter from United Way of Atlanta, dated January 17, 2004
Copy of Certificate of Appreciation, dated March 25, 2003
Copy of Certificate of Appreciation, dated June 10, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870115 - 870323	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870324		Date of Discharge:  910405

Length of Service (years, months, days):

	Active:    04  00  12
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  62

Highest Rate:  RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  2.80 (5)		OTA:  2.95

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

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:

900212:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
	Award:  Forfeiture of $300.00 pay per month for 1 month, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

900224:	Retention Warning:  Advised of deficiency (Physically aggressive behavior towards other crew members, unwillingness to acknowledge your mistakes, lack of conscientiousness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900725:	Medical Officer Evaluation:  “Pt feels and says his Div Off agrees that he has a problem dealing with others __i.e., responding, reaching to others, especially whey they are aggravating or confrontational to him…”

900730:	Mental Health Clinic.  “…Administered the MMPI, a test of personality functioning…Claims to be the target of verbal abuse by his shipmates…Fearful and distrustful of others and is extremely sensitive to criticism and opinion of him by other…Impression: Schizoid personality traits manifested by difficulty in interpersonal relationships…Plan:   Instructed in stress management techniques…”

900801:	NJP for violation of UCMJ, Article 117: Provoking speeches; violation of USMJ, Article 128: Assault upon a sentinel.
	Award:  Forfeiture of $100.00 pay per month for 3 months, reduction to E-2.  No indication of appeal in the record.

900804:	Retention Warning:  Advised of deficiency (You have demonstrated an inability to conduct yourself in an orderly manner and failed to maintain control of your temper as evidenced by your award of punishment at Commanding Officer’s Non-judicial Punishment for assault on other crew members and you have demonstrated an inability to follow orders and support command and Navy policy as evidenced by your being placed on report to this command for failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
901011:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order; violation of UCMJ, Article 128: Assault consummated by battery.
	Award:  Reduction to E-1 and recommended for ADSEP.  No indication of appeal in the record.

901029:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

901029:	Applicant advised of his rights and having elected 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.

910102:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: “It is recommended that based on Applicant’s deplorable disciplinary record, he be separated from the Naval Service.”

910228:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930909:	NDRB documentary record review Docket Number ND92-01451 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910405 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 acknowledged that some of his problems in the Navy can be attributed to his "youth and immaturity".  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 "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