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

 
ex-AR, USNR
Docket No. ND03-01377

Applicant’s Request

The application for discharge review was received on 20030813.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040608.  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

No issues were submitted by the Applicant. 

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)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  950118			Date of Discharge:  960416

Length of Service (years, months, days):

	Active:    01  02  10
	Inactive:  00  00  19

Age at Entry:  18			Years Contracted:  8 

Education Level:  12			AFQT:  34

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  NDSM

Days of Unauthorized Absence:  None

* No marks found in service record

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:

950207:	Applicant ordered to active duty.

950803:	Mental Health Exam:  22 year old black male AD/AR/USN was referred to medical for fear of heights.  After discussing with member he appeared to meet DSMIV criteria for phobia.

	Diagnostic Impression as per DSM IV:

	Axis I:  No diagnosis
	Axis II: No diagnosis
	Axis III: Deferred to medical evaluation

951120:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 80
	Specification: Attempt to escape from custody.
	Charge II: violation of the UCMJ, Article 86
	Specification 1:  Absent himself from appointed place of duty.
	Specification 2:  Failure to go to appointed place of duty.
	Specification 3:  Failure to go to appointed place of duty.
	Charge III: Violation of the UCMJ, Article 91 
	Specification 1:  Disrespect to a Chief Petty Officer
	Specification 2:  Disobey a lawful order from a senior Petty Officer
	Specification 3:  Disobey a lawful order from a senior Petty Officer
	Specification 4:  Disrespect to a senior Petty Officer
	Charge IV:  Violation of the UCMJ, Article 128
	Specification 1:  Assault on a Second Class Petty Officer
	Specification 2:  Assault on an Airman Recruit
	Charge V:  Violation of the UCMJ, Article 134
	Specification 1:  Drunk and Disorderly conduct.
	Specification 2:  Incapacitated for performance of duties.
	Specification 3:  Communicating threat to kill Chief Petty Officer
Finding: to Charge I, II, III, IV, IV and the specifications thereunder, guilty.
	Sentence: 30 Days Confinement, Forfeiture of $569.00 X 1 month, and reduced to E-1.
	CA action 951202:  Sentence approved and ordered executed.

951218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951221:	Drug and Alcohol Abuse Report:  Alcohol abuse, less than monthly, ashore-off duty.  Method of indication; civilian police on 951101.  Medical officer recommended Level I treatment.  Physician found applicant not dependent recommended Level II.  Command Officer recommended separation.  Comments: AR W_ (Applicant) reported onboard to TPU on 95DEC14 for admin separation.  Member was screened on board parent command and found not dependent.  However, is eligible for level II treatment.  AR W_ is in a legal hold status awaiting an Admin board.  Member desires to stay in the Navy.  TPU is not recommending retention, there is no potential for further useful naval service.

960214:	Applicant advised of his rights and elected to withdraw his request for an Administrative Discharge Board, to consult with counsel, and to make a statement.

960216:	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: “AR W_ has been a below average performer.  His blatant disregard for authority and the Navy’s rules and regulations have made him a burden to the navy.  Since being onboard this command, he has not followed our rules and regulations.  Therefore, I must recommend AR W_ be discharged from the Naval service with an Other than Honorable Discharge.” 

960402:	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 19960416 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).

The Applicant introduced no decisional issues for consideration by the Board.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of a Summary Court-Martial for violations of articles 80, 86, 91, 128, and 134 of the Uniform Code of Military Justice (UCMJ).  The applicant’s conduct, which forms the primary basis for determining the character of his service, accurately reflects his misconduct..  An upgrade to honorable would be inappropriate.  Relief is therefore 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 or any other evidence relating 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 9, effective 
22 Jul 94 until 02 Oct 96, 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