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

 
ex-AR, USN
Docket No. ND04-01340

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 or general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20041112.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Gentlemen
I joined the service with an exemplary civilian record.  I joined to serve America and freedom.  After reviewing my files I hope you will agree with me that I got less than I gave.  Your’re attention here is requested.”

Documentation

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

Applicant’s DD Form 214 (Member1)
Joint Meritorious Unit Award citation for April 1988

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870501 - 870510	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870511		Date of Discharge:  890821

Length of Service (years, months, days):

	Active:    02  03  11
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.33 (3)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM (Persian Gulf), SSDR, JMUA, CAR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880324:	Medical record entry: Applicant referred for possible homicidal thoughts.  A: Fit for duty.  P: Return to duty, member counseled regarding his being held responsible for his actions.

880329:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery, violation of UCMJ, Article 134: Communicating a threat, violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer.
	Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

881208:	Medical record entry: Impression: Normal exam.  Plan: Return to sick call if work situations indicates evaluation or counsel or if psychiatric symptoms occur.  Psychiatrist consult not indicated.

881209:	NJP for violation of UCMJ, Article 134: Communicating a threat on 881202.
	Award: Restriction and extra duty for 10 days.  Punishment suspended for 3 months.  No indication of appeal in the record.

890310:	NJP for violation of UCMJ, Article 89: Disrespectful towards a superior commissioned officer, violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 117: Provoking speeches or gestures.
	Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

890310:	Retention Warning from USS TRENTON (LPD-14): Advised of deficiency (Disrespectful towards a superior commissioned officer, disobeying a lawful order and provoking speeches or gestures.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890310:	Medical record entry: Impression: Personality disorder, delusional.  Situational stress.  Combative; not ostensibly suicidal or homicidal, but threatening gestures and talk.  Plan: Protective custody.  Evaluation by Psychiatry, Naval Hospital, Portsmouth.  Sewell’s Point Branch Clinic medical officer pre-confinement evaluation.

890531:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 89:
	Specification: Disrespect towards a superior commissioned officer on 890310.
	Charge II: violation of the UCMJ, Article 91:
	Specification: Disobeying a lawful order on 890310.
Charge III: violation of the UCMJ, Article 134:
Specification: Disorderly conduct on 890310
	Findings: to Charge I, II and III and specifications thereunder, guilty.
	Sentence: Forfeiture of $150 per month for 3 months, confinement for 90 days.
	CA 890731: Sentence approved and ordered executed.

890731:	USS TRENTON (LPD 14) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  [Extracted from Commanding Officer’s message dated 890802.]

890731:	Applicant advised of rights and having elected not to consult consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  [Extracted from Commanding Officer’s message dated 890802.]

890802:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

890811:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890821 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he “got less than [what he] gave.”  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 or general (under honorable conditions).  An under other than honorable conditions 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 three nonjudicial punishment proceedings for multiple violations of Articles 91, 92, 117, 128, and 134 of the UCMJ.  The Applicant was also convicted at special court-martial for violations of Articles 89, 91, and 134 of the UCMJ.  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 following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 7, effective 25 May 89 until 20 Aug 89), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

B.  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.

C.  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.

D.  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.  

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