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

   ex-AA, USN
Docket No. ND05-00201

Applicant’s Request

The application for discharge review was received on 20041109.  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.  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, DC area.  The Applicant did not respond.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “MY DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS WAS BASED ON FIGHTING AND DRUNK AND DISORDERLY BEHAVIOR.  WHILE I WAS STATIONED ON THE USS MIDWAY I WAS ASSAULTED ON THREE OCCASIONS.  ON TWO OF THOSE OCCASIONS I WAS STRUCK IN THE HEAD BY A HEAVY OBJECT.  (I WAS TREATED AT THE USS MIDWAY SICKBAY).  IT WAS ONLY AFTER THESE EPISODES THAT I BEGAN THE PATTERN OF BEHAVIOR THAT ULTIMATELY LED TO MY UNSATISFACTORY DISCHARGE.  I CONTINUE TO SUFFER FROM MENTAL PROBLEMS TO THIS DAY AND HAVE MADE APPLICATION TO THE VA FOR A SERVICE-CONNECTED DISABILITY.  HAVING MY CHARACTER OF DISCHARGE UPGRADED WOULD SIGNIFICANTLY HELP MY APPLICATION TO THE VA.”

The American Legion submitted not issues for consideration.
 
Documentation

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

Applicant’s DD Form 214
Letter from Mountain Laurel Community Services, dated December 21, 2004
3 pages from the Applicant’s medical record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880729 - 881017	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  881018		Date of Discharge:  901227

Length of Service (years, months, days):

	Active:    02  02  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  29

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.73 (3)		Behavior:  2.40 (3)		OTA:  2.47

Military Decorations:  None

Unit/Campaign/Service Awards:  Armed Forces Expeditionary Medal

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890720:	Applicant to unauthorized absence 0200-0340, 890720.

890722:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 116: Breach of peace.
	Dates of offenses: 890720 and 890613.
	Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900403:	NJP for violation of UCMJ, Article 134: Unlawfully carry a concealed weapon.
	Award: Forfeiture of $200 per month for 2 months, extra duty for 15 days.  Forfeiture for 1 month suspended for 3 months.  No indication of appeal in the record.

900611:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 900403.

900620:	Applicant referred for CAAC screening due to two alcohol related incidents.  Assessment: Episodic alcoholic abuser with high potential for addiction.  Narcissistic and passive-aggressive personality traits.  Plan: Recommend Level II CAAC.  May use antabuse.

900625:	Applicant to unauthorized absence 0700-0745, 900625.

900630:	NJP for violations of UCMJ:
Article 134 (2 specs): (1) Drunk and disorderly on 900519, (2) Drunk and disorderly on 900610.
Article 128 (2 specs): (1) Assault upon another servicemember on 900519, to wit: striking at him with his fists, (2) Assault on 900610, to wit: by clenching his fist and moving toward MM2.
Article 108: Willfully destroy military property on 900519, to wit: two wooden chairs, violation of UCMJ.
Article 86 (2 specs): (1) Unauthorized absence on 1600-1630, 900519, (2) Unauthorized absence on 0700-0745, 900625.
Article 92: Fail to obey a lawful order to stop using profane language and provoking speech on 900610.
Article 91 (4 specs): (1) Disrespectful in language toward BT2 on 900610, to wit: by saying “shut up you stupid flip”, (2) Disrespectful in language toward MM1 on 900610, to wit: by saying to him “to f_ off”, (3) Disrespectful in language toward MM3 900610, to wit: by saying to him “shut the f_ up”, “f_ you” and “you’re a p_” (4) MM2 Disrespectful in language toward 900610, to wit: by saying to him “I’m an Airman and don’t you forget it.”
	Award:  Forfeiture of $405 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

900702:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900703:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900806:	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 discharge under other than honorable conditions.

900815:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900827:	CNMPC 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 19901227 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).

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 (NJP) proceedings for violations of Articles 86, 91, 92, 108, 128 and 134 of the UCMJ. The Applicant’s violations of Articles 91, 92, 108, 128 and 134 are considered serious offenses.  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 contends that it was only after he was assaulted three times that he began a “pattern of behavior that ultimately” resulted in his discharge.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The Applicant was discharged for misconduct due to the commission of a serious offense.  The Applicant’s contention, that his misconduct was the result of trauma caused by assaults on the Applicant is not supported by the evidence of record.  The Applicant’s first infraction of the UCMJ was adjudicated at NJP on 19890722.  The Applicant’s first serious offense, for carrying a concealed weapon, was adjudicated on 19900403.  Neither the evidence of record nor the statements and documents submitted by the Applicant show that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  In fact, the NDRB sees no connection between the Applicant’s misconduct and assaults he alleges were committed upon him or his alleged medical condition.  The Applicant committed acts of misconduct throughout his enlistment, from 19890720 until 19900610.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 violations of the Uniform Code of Military Justice, Article 91, insubordinate conduct toward a petty officer, Article 92, failure to obey an order/regulation, Article 108, willfully destroy military property, Article 128 Assault or Article 134, drunk and disorderly conduct, 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 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