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

FOR OFFICIAL USE ONLY

 ex-DCFR, USN 
Docket No. ND05-01360

Applicant’s Request

The application for discharge review was received on 20050818.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060414.  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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My court marshal was an held illegally.  All officers present were from same command as myself and therefore bias.  U.C.M.J. states officers from separate be used.”

Documentation

Only the service and medical records was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900226 – 19900416		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900417		Date of Discharge:  19920420

Length of Service (years, months, days):

	Active:    02  00  03  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  22 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12(GED)				AFQT:  63

Highest Rate:  DCFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1) 		Behavior:  3.6 (1) 		OTA:  3.60 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  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: 

900724:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 128 (Simple Assault)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900904:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86 (Unauthorized Absence)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

Undated:	Record of Counseling: UA from appointed duty 0230-0530 on 28 Feb 91.

910306:	Record of Counseling: Performance, UA 2 hours, thirty minutes, disrespect.
   
910430:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 89: Disrespect toward Commanding Officer on or about 910426.
	Charge II:  violation of the UCMJ, Article 91: Disrespectful in language toward a chief petty officer on or about 910324.
	Charge III:  violation of the UCMJ, Article 128 (3 specifications): Unlawful assault on or about 910325.
	Charge IV:  violation of the UCMJ, Article 134: Wrongfully communicating a threat to injure on or about 910325.
	Finding: Not found in record.
	Sentence: Reduction to E-1, confinement for 1 month, forfeiture of $502.60.
	CA action 910603:  The sentence is approved and ordered executed.  Forfeitures are mitigated to forfeiture of $502.00 pay per month for 1 month.  The U.S. Navy Brig, Philadelphia, PA is designated as the place of confinement.  The accused will be given credit for pretrial confinement served.  The record of trial is forwarded to Force Judge Advocate, Commander, Naval Air Force, U. S. Atlantic Fleet for review pursuant to Art 64, UCMJ. 

910604:	Record of Counseling: Personal behavior, responsibilities.

Undated:	Record of Counseling: Personal behavior, responsibilities.
 
910627:	NJP for violation of UCMJ, Article 91:  On or about 910624, disrespectful in language and deportment towards a petty officer.
	Violation of UCMJ, Article 92 (5 specs):
	Specification 1: Dereliction in his duty, on 910608.
	Specification 2: Failed to obey a lawful order on 910609.
	Specification 3: Failed to obey a lawful order by a petty officer on 910609.
Specification 4: Failed to obey a lawful order on 910624.
Specification 5: Failed to obey a lawful order on 910624.
	Award:  Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

910717:	NJP for violation of UCMJ, Article 91:  Willful disobey a lawful order issued by a superior petty officer on or about 910707.  2. Disrespectful in language and deportment to two superior petty officers on or about 910707.
Award:  3 days bread and water (suspended for 6 months).  No indication of appeal in the record.

910724:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense as evidenced by your enlisted service record.

Undated:	Applicant advised of rights, elected to appear before an Administrative Discharge Board.

910923:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense as evidenced by his enlisted service record, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

911101:	NJP for violation of UCMJ, Article 91: 1. Insubordinate conduct toward petty officer on 911024 SNM disrespectfully in language toward a superior petty officer by saying to him, “so you think you’re a bad m___”, and “a lawful order don’t mean s__ to me”.
Violation of UCMJ, Article 92: Failure to obey order on 0725, 911024 SNM failed to obey an order to be quiet and stand at attention.
Award:  Restriction to Nimitz Hall for 15 days (suspended for 6 months), extra duty for 15 days.  No indication of appeal in the record.

911114:	Commanding Officer, USS KITTY HAWK (CV 63) recommendation to Bureau of Naval Personnel (PERS-83) for the Applicant’s separation due to misconduct to commission of a serious offense.  Commanding Officer’s comments: “ DCFR B_ (Applicant) has demonstrated absolutely no rehabilitative potential.  Therefore, I strongly concur with the recommendation of the Administrative Board that DCFR B_ (Applicant) be discharged from the Naval Service under other than honorable conditions.

911210:	BUPERS message to USS KITTY HAWK.  Action on the administrative proceedings in case of DCFR J_ D. B_ (Applicant) is held in abeyance.  Ref A (USS KITTY HAWK/ 14NOV91) received without report of a admin board or signed SOA.  Request forward. 

911230:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward a chief petty officer/2 specs on 911209 SNM did treat with contempt GSEC K_, a Chief Petty Officer by turning and walking away while GSEC K_ was talking to him.  On 911217 SNM was disrespectful in language toward a Superior Petty Officer by calling him a “m__” and cursing and using profanity toward him.
	Violation of UCMJ, Article 92: Failure to obey a regulation. On 911107 SNM failed to obey a lawful general regulation by wrongfully possessing two military identification cards.  Award:  Forfeiture of $376.95 per month for 1 month, restriction to Nimitz Hall for 30 days (credit for 15 days).  No indication of appeal in the record.

911230:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a commission of a serious offense as evidenced by service record entries.

911230:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

920403:	Commanding Officer, Transient Personnel Unit recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by service record entries.  Commanding Officer’s comments:  “In view of the offenses evidenced in paragraph 1d it is recommended that DCFR B_ (Applicant) be separated with an other than honorable discharge.”

920410:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920420 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 the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  The Applicant alleges that his court martial was held illegally because the court was comprised of officers from his command.  The Applicant was the subject of a summary court-martial, properly convened and comprised of one commissioned officer.  According to the UCMJ, the summary court-martial officer may be a member of the same command as the service member.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is 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.  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 received 2 retention warnings and was counseled on 4 other occasions for UA, performance, and personal behavior.   The Applicant’s service was marred by 4 nonjudicial punishment proceedings for violations of UCMJ Articles 91 (6 specs) and 92 (7 specs).  In addition, the Applicant was the subject of a summary court-martial for violations of UCMJ Articles 89, 91, 128 (3 specs) and 134.  Violations of UCMJ Articles 89, 91, 92, 128 and 134 are considered to be 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 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 additional evidence related to this 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), effective 15 Aug 91 until 
04 Mar 93, 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 violation of the UCMJ, Article 89, disrespect toward superior commissioned officer, Article 91, contempt, disrespect toward a superior noncommissioned or petty officer, Article 92, failure to obey a lawful order and dereliction of duty, Article 128, assault, and Article 134, communicating a threat.

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