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

FOR OFFICIAL USE ONLY

  ex-FA, USN
Docket No. ND05-01241

Applicant’s Request

The application for discharge review was received on 20050725.  The Applicant requested a documentary discharge review to change his characterization of service, received at the time of discharge to honorable.  The Applicant did not designate a 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 or Washington, D.C. Metropolitan area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060224.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Applicant’s issues, as stated on the attached document: 

“Information regarding the Other Than Honorable Discharge of C_ E. B_

I was discharged due to my actions after an incident of being provoked.  I feel that there were people who were upset with me for having surgery on my finger.  I had the pinky finger on my left hand fused together.  Having this surgery removed me from being “active” for duties.  I was placed on a medical leave.  Some felt that this was not an important enough issue to be relieved of duties.

I was told to go on watch duty.  Petty Officer First Class C_ G_ (my L.P.O.) knew that I was on “medical leave status”.  He felt that I should stand watch regardless of my medical situation.  I felt different, as I was concerned about injuring my finger again.

To this day I wonder if Petty Officer First Class C_ G_ had permission to force me to stand watch while in this situation, or did he force me to stand watch on his own accord.  The end result was that I stood watch while under a medical leave.

It was meal time when he told me to go on watch I was not given enough notice to eat.  So, I broke a rule and brought a cheeseburger with me.  NOTE: This was a rule that was not enforced on sailors who were on watch.  This was due to the many situations that occur when sailors were not able to eat in the mess hall.

Petty Officer First Class C_ G_ cursed at me for having the cheeseburger while on watch.  He slapped the cheeseburger out of my hand and cursed at me again.  He then told me to pick up the cheeseburger and throw it away, cursing at me the entire time.  I picked up the cheeseburger, walked over to the trash can and threw the cheeseburger away.  At this point I had had enough.  I lost my temper and grabbed a hold of Petty First Class Officer C_ G_ and put him into a headlock.  This caused no injury to him.

This incident resulted in my having a hearing for my actions.  I was given an Other Than Honorable Discharge.  This was issued to me due to the hesitation of my reaction towards Petty First Class Officer C_ G_.

I felt, and still feel, this hearing was more one sided towards the prosecution.  All of the truth did not come out.  My judge advocate had little to no experience.
NOTE: It was her first case.  If I could have afforded my own personal lawyer, or had someone with experience, the end result would have been different.”

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19860930 – 19870812		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19870813		Date of Discharge:  19910605

Length of Service (years, months, days):

	Active:    03 09 23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  37

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (4) 		Behavior:  2.3 (4) 		OTA:  3.15 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbons (2), Meritorious Unit Commendation, Joint Meritorious Unit Award, Armed Forces Expeditionary Medal (2), Combat Action Ribbon, National Defense Service Medal.

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

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

Chronological Listing of Significant Service Events: 

890331:	Retention Warning:  Advised of deficiency (not completing assigned watch station qualification on schedule and not following rules and regulation of the navy), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890707:	NJP for violations of UCMJ, Article 89 (disrespect toward a superior commissioned officer) and Article 92(failure to obey lawful order).
	Award:  60 days restriction (30 days suspended) suspension expires 890901, promotion to E-4 suspended through 890901.  No indication of appeal in the record.

891008:	Violation of UCMJ, Article 92 (failure to obey order or regulation).

891030:	NJP for a violation of UCMJ, Article 92 (failure to obey order or regulation).
	Award:  Promotion to E-3 revoked, restriction and extra duty for 30 days.  No indication of appeal in the record.

900226:	Notified of physical readiness test failure and issued discharge warning.

900316:	Violations of UCMJ, Article 86 (unauthorized absence) and Article 91 (insubordinate conduct toward a superior petty officer).   

900417:	NJP for violations of UCMJ, Article 86 (unauthorized absence) and Article 91 (insubordinate conduct toward a superior petty officer).
	Award:  30 days Correctional Custody Unit (CCU).  No indication of appeal in the record.

901124:	Violation of UCMJ, Article 92 (fail to obey a regulation) by violating curfew from 0000 until 0055 on 901124.

910131:	Violation of UCMJ, Article 128 (assault) by lunging at and jumping on Petty Officer First Class G_.

910208:	Applicant to unauthorized absent from 0700 until 1000 on 910208 and violated the UCMJ, Article 90 (disobey a superior commissioned officer) by failing to be at quarters as ordered.

910208:	NJP for violations of UCMJ, Article 86 (unauthorized absence), Article 90 (disobey a superior commissioned officer), Article 92 (failure to obey an order or regulation), and Article128 (assault).
	Award:  Reduction in rate to E-2 and forfeiture of $400.00 per month for 2 months.

910221:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense-willful disobedience of a superior commissioned officer, failure to obey a lawful general regulation and assault consummated by a battery

910221:	Applicant advised of his rights and following consultation with counsel, elected to appear before an Administrative Discharge Board.

910423:	An Administrative Discharge Board, based upon the preponderance of evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

910503:	Commanding Officer, USS GOLDSBOROUGH (DDG 20) recommended to Commander Naval Military Personnel that the Applicant be discharged due to the commission of a serious offense.  Commanding Officer’s comments:  “Fireman B_ has been a serious discipline problem for the command.  I concur with the recommendation of administration board recommending separation with a characterization of other than honorable.”

910523:	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 19910605 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires a showing, by a preponderance of the evidence, that misconduct which would warrant a punitive discharge if tried by special or general court-martial has occurred.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  The Applicant’s service was tarnished by four nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence, 2 specifications); Article 89 (disrespect toward a commissioned officer); Article 90 (disobey a commissioned officer); Article 91 (insubordinate conduct); Article 92 (failure to obey an order or regulation, 3 specifications); and Article 128 (assault).  Reference (A) defines each violation of Articles 89, 90, 91, 92, and 128 as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed these serious offenses.  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.  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  Relief is denied.

The Applicant stated that he felt he had been unjustly separated.  The Board inferred from this statement that the Applicant considers his discharge as punishment.  For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial.  Administrative discharge processing is administrative in nature and not a form of punishment.  The administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process.  The Applicant’s issue is without merit.  Relief denied.  

The Applicant contends that he was provoked into taking actions that resulted in his discharge.  Even though the Applicant bears the burden of presenting substantial and credible evidence to support his issue, he submitted only his statement.  The Applicant’s service record documents that his misconduct began prior to the incident, which he describes.  The record also offered sworn statements rebutting the Applicant’s accusations.  While the Applicant may feel that he was provoked into assaulting a petty officer, this does not justify his misconduct or exonerate his actions.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service.   Relief denied.

The Applicant contends that his discharge was improper because his counsel was inexperienced.  The record confirms that competent legal counsel as defined by the UCMJ Article 27(b) represented the Applicant.  The record shows that this counselor properly represented the Applicant before his administrative discharge board.  This issue does not merit relief.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for any violation of UCMJ, Articles 89, 90, 92, 91, and 128.

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