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

 ex-SKSN, USN
Docket No. ND04-01329

Applicant’s Request

The application for discharge review was received on 20040823.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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: GENERAL (UNDER 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:

“Issue 1: I was being considered for a physical disability discharge and was was unfairly denied one.  The Commanding Officer knew that I was awaited CPEB, of the foot.”

“Issue 2:  My discharge was based on many offenses, but they were mostly only minor offenses.  UA 28 January 1988, Snow Storm, no commercial fly in or out.  The Commanding Officer informed 05 April 1998 miss a doctor appointed.  23 July claim there were a assault, there were never any assault nor communicating a threat.  28 March 1993 UA for two hour fifty-nine minute.  27 April 1993 False official statement which not true.”

“Issue 3:  I tried to serve and wanted to but just couldn’t or wasn’t able to at my last command where I was assign to work in a small warehouse, and do nothing but sit there not learning anything in the rating.  When I do go to the office the division officer want to know is there any things wrong with the warehouse.”

“Issue 4:  My use of alcohol & personal problems impaired my ability to serve there were time I be on the ship or in the warehouse drinking alcohol sometime I would go to sickcall still drunk from the previous night of drinking.  Hell, the Command Master Chief was the biggest alcoholic at my first duty station.”

Documentation

On DD Form 293 the Applicant indicated he attached additional documentation, but none was found.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860806 - 861019	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  861020		Date of Discharge:  930816

Length of Service (years, months, days):

	Active:    06  09  27
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (38 months extension)

Education Level:  12  			AFQT:  35

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (8)	Behavior:  3.45 (8)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NDSM (2), KLM, SSDR, CGSOSR

Days of Unauthorized Absence:  1

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880111:	UA from USS DOYLE (FFG-39) at Mayport, FL from 0700, 880111.

880112:	Surrendered onboard USS DOYLE (FFG-39) at 1030, 880112 (1day/S).

880128:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award:  Unknown [Extracted from CO’s message].

880405:	CO’s NJP, Offenses and punishment unknown [Extracted from CO’s message].
	
880721:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 86: Unauthorized absence from appointed place of duty.
	Award:  Restriction and extra duty for 11 days, reduction to E-2.  No indication of appeal in the record.
 
891005:	Retention Warning:  Advised of deficiency (Disrespect to supervisory personnel), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900623:	NJP for violation of UCMJ, Article 128: Assault consummated by  battery,  Violation of UCMJ Article 134: Communicating a threat.  Violation of UCMJ Article 134: Disorderly conduct, drunkenness.
	Award:  Extra duty for 14 days.  No indication of appeal in the record.

900716:	Retention Warning:  Advised of deficiency (Assault and Disorderly Conduct - Alcohol related), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900810:	Punishment of reduction in rate to SKSN suspended at CO’s NJP of 900623 vacated due to continued misconduct. 
 
900824:	Retention Warning:  Advised of deficiency (Slow in obeying orders), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
921002:	NJP for violation of UCMJ, Article 86: Unauthorized absence, on or about 0930, 920916 failed to go to ORTHO appointment at NAVHOSP Pensacola, FL.
	Award:  Forfeiture of $150.00 pay per month for 2 months (1 month suspended for 6 months).  No indication of appeal in the record.

930414:	Punishment of forfeiture of 150.00 pay per month for 2 months, one month suspended for 6 months at CO’s NJP of 921002 vacated due to continued misconduct.
  
930507:	NJP for violation of UCMJ, Article 86: Absence without leave, on or about 0700, 930328 was absent without leave from NCTC Gulfport MS until 1059, 930328 (a period of approximately 4 hours). Violation of UCMJ Article 107: False official statement on or about 930430.
	Award:  Restriction for 45 days, reduction to E-3.  No indication of appeal in the record.

930616:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all punishments under the UCMJ.

930616:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930630:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended a general (under honorable conditions) discharge.

930715:	Commanding Officer recommended general (under honorable conditions) discharge by reason of misconduct due to the commission of a serious offense.

930730:	BUPERS directed the Applicant's discharge with a general (under 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 awarded a General (Under Honorable Conditions) discharge on 19930816 for misconduct due to commission of a serious offense (A & B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  DoD disability regulations do not preclude a disciplinary separation.  Such separations normally supersede disability separations or retirements.  Whenever a member is being processed through the PEB, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The PEB case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Relief denied.

Issue 2.  The Applicant states that his discharge was “based on many offenses, but they were mostly only minor offenses.”  The Applicant was subject to NJP proceedings for a violation of Article 128, assault, of the UCMJ, a serious offense.  The Applicant elected to appear before an administrative discharge board, which found unanimously that the Applicant had committed a serious offense and that he should be separated with a general (under honorable conditions) discharge.  Relief denied.

Issue 3.  The Applicant contends that he tried to serve and wanted to but could not or was not able to as he was assigned to a warehouse where he could not learn his rating.    While he may feel that his billet was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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 4.  The Applicant contends his disciplinary problems were the result of his use of alcohol and personal problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge 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 six nonjudicial punishment proceedings for at least 10 violations of Articles 86, 107, 128 and 134 of the UCMJ.  The Applicant’s Commanding Officer also vacated suspended punishments on two occasions, indicating further misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128, assault, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023