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

ex-SKSR, USN
Docket No. ND03-01082

Applicant’s Request

The application for discharge review was received on 20030604.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20040423.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The reason for my letter as you may know is for a upgrade on my discharge.  I feel that my career in the military was totally destroyed.  I was told by my CO at the time of the incident, that because of my police record back home, that I should not have been able to join the “Navy”.  I would like to clear something up.  When I was recruited, my recruiter knew exactly what was on my police record.  So if this was a problem for my CO, then it should have been a problem for my recruiter.  Instead, I was told by my recruiter that my record showed no problems which would effect my chances of becoming apart of the USN.  At this point, I had become very happy that I was doing something positive with my life.  Basically what I’m saying, is that I shouldn’t be at fault for this.  I had finished boot-camp and then went on to graduate from SK School, (third out of a classroom of about twenty five to thirty students, secondly, if you were to look at my police record, then you would see that I’m not a violent person, nor was I convicted of any crime on my record.  Never locked up and never did time for a crime.  So I was really shocked to find out that I was being discharged.  To find out that I was being discharged after I had put so much into my studies at SK school, and after boot-camp at Great Lakes crushed my chances of being apart of the “S” Team, USN.  My instructor at SK school told the CO that I was a great student and a great recruit, but she didn’t bother to hear that.  My instructor even went to Captain Mask with me to try to persuade the CO that I had made a mistake, but was a well disciplined student.  After working so hard on becoming a SK it all went down the drain and I had let my parent down.  Not only that, my CO put me back into a war zone, my old neighborhood.  Fortunately, I went on to graduate from college.  As for the incident that lead to Captains-Mask, it should have never happened.  My room-mate and I were good friends.  It just so happened that my room-mate had a little to much to drink that night at the bar on base.  We were playing cards, and maybe something back home was bothering him.  Let me make this clear, I’m not a drinker and never have been.  Anyway, he decided to go into his room, (my room-mate).  My other shipmates and I started cleaning up and jokingly playing.  He said that we were to loud and to be quiet.  We all thought he was joking, so we all replied, “Go lay down”.  Next thing you know he snatched the broom from me and broke it across the seal of the door and poked me in the chest with the jaggered edges.  It was like, for every action there is a reaction.  I had the dust pan in my hand already and just hit him with it.  I never meant to hurt him because we were friends and just had finished playing cards.  But like I said, he had been drinking so it lead to a physical incident.  A incident that I regret happened.  But I was defending myself.  It all happened so fast!  I never wanted to hurt him but the jagged edges sparked fire within me.  I’m not a violent person at all, and I get along well with others no matter what race.  He was sent to AA meetings, and my career was over just that quick.  My hard studying and hard boot-camp all a waste of time.  I think it could have been done a little better than that.  If I wanted to be a violent person, then I would have join the Marines.  Finally, I feel that my recruiter should be at fault and not someone who had dreams on becoming a Seaman.  But everything happens for a reason.  This theory helped me to recover after a let down.  The USN missed out on a dedicated and great student.  And I have no hard feelings toward the USN, just towards my recruiter.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930715 - 931114	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  931115		Date of Discharge:  940718

Length of Service (years, months, days):

	Active:    00  08  04
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  SKSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None
*None Obtained

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940324:	NJP for violation of UCMJ, Article 128: Assault consummated by battery, by hitting another service member in the head with a dustpan.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

940419:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to report your completed arrest record, and misconduct due to the commission of a serious offense, assault.

940420:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940519:	Commanding Officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry and misconduct due to the commission of a serious offense (I.E. Assault). 

940714:	BUPERS 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 19940718 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 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 nonjudicial punishment (NJP) thus substantiating the misconduct.  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 general (under honorable conditions) would be inappropriate.  Relief denied.

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 sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 5, effective 
05 Mar 93 until 21 Jul 94, 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