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

  ex-SA, USN
Docket No. ND05-00167

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050201.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “ I feel my discharge is unfair because it was based on one incident in a three year period.  This incident happened with a person I considered a friend, but who was constantly getting into trouble who’s name was J_ S_.  We would regularly horseplay in a fashion were we taunted each other in a playful manner.  One day during our six month deployment I made the mistake of horsplaying with a knife.  J_ and I were doing a work assignment together were we had to cut line for the boatswain mates, we were deck seaman’s. It came at a perfect time for SN S_ because he was in trouble with BMC and BM1.  That was when he decided to go and accuse me of assaulting him with a knife.  In doing so everything he had done wrong was forgotten.  When I was called in to address this situation with my superiors they did not listen or seem to care. I tried to explain first that the knife was part of our daily uniform, second, I had the knife out because I was cutting some line for the BM’s who asked SN S_ and I to work on a assignment together.  We were Deck SN’s .  The following day, Captain’s Mast was held and the decision was made to Administrative Discharge me.  It was a day before returning to homeport Pearl Harbor, Hawaii after a gruesome six month deployment.  I was depressed and could not believe what was happening.  How horseplay got me in so much trouble.  I was discouraged by a Chief Legalman who was appointed to me, not to appeal the decision because I would be incarcerated and would not be able to fly back home and see my family after a long deployment.  Since my other than honorable discharge, I have been turned down for several jobs, no money for college, not yet been able to get back on my feet.  This is why I’m respectfully requesting and Honorable Discharge.”                      

Documentation

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

Applicant’s DD Form 214
Copy of Commander’s Navy Region Hawaii, Discharge Authority 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010830 - 011016	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  011017		Date of Discharge:  040407

Length of Service (years, months, days):

	Active:    02  05  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  13			AFQT:  31

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)		Behavior:  3.33 (3)		OTA:  2.94

Military Decorations:  None

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

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

040310:	NJP for violation of UCMJ, Article 128: Aggravated assault, did on or about 040308, commit an assault upon a SA, by holding up to his throat a dangerous weapon likely to produce death or grievous bodily harm, to wit: a knife.
	Award:  Forfeiture of $706.35 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

040312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040312:  	Applicant advised of his rights and having elected not 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.

040317:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

040324:	Commander, Navy Region Hawaii authorized 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 20040407 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for assault upon another shipmate, which is considered a serious offense under the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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.

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

D.  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