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

FOR OFFICIAL USE ONLY

  ex-AZAN, USN
Docket No. ND05-01553

Applicant’s Request

The application for discharge review was received on 20050920.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and/or the Narrative Reason for Separation be changed to “Uncharacterized.”  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 20060629.  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 and reason for discharge shall not change.  The discharge shall remain General (Under 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:

“I believe I was discrimated against and my discharge came as a result of persuasive decision not facts.
My Departmental Master Chief (AIMD) NAS Signonella AECM U_ had it in for me.  Indeed I was no saint however I was not deserving of the character in service rendered or the type of discharge.
At the time of discharge, I was seven months pregnant, living and working at Naval Air Station Sigonella.  Having arrived at NAS Sigonellas in April of 1999 with good evaluations and test qualifications I attained and earned the title of Petty Officer (E4) in less than two years of service.
I was active in community service, I attended college, I volunteered for Cadre Watch and base duty driver, and I participated in Cmd functions and got along well with shipmates, most of whom I still communicate with.
I was proud of myself and the fact that I was serving this country, I was accomplishing things I never thought about and I was sad to have my career end without just cause.  I was particularly disturbed that countless service members actions have far surpassed any of the accusations against me and I someone who was proud of what I was doing and good at it was the victim of an ugly American tradition, racism.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Official change of duty orders, dtd February 26, 1999 (2 pages)
Academic Institution Courses, dtd June 18, 2005
Applicant’s DD Form 214
Summary of courses, not dated
Certificate of participation, dtd February 27, 1999
Certificate of training, dtd July 2, 1999
Certificate of participation, dtd February 20, 1999
Memorandum re: Choir certificate, dtd March 21, 1999

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980929	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980930		Date of Discharge:  20000804

Length of Service (years, months, days):

	Active:    01  10  05
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  3.0 (2)	OTA:  3.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Overseas Ribbon, NATO Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

980929:	Pre-service waiver for one non minor misdemeanor (simple battery) and physical violence granted.

990809:	Report of Disposition of Offense(s):
		Charge: Violation of the UCMJ, Article 134
Specification 1: In that Airman A_ O. K_(Applicant), U.S. Navy, U.S. Naval Air Station, Sigonella, Sicily, Italy, on active duty, did, at U. S. Naval Air Station, Sigonella, Sicily, Italy, on or about 30 July 1999 orally communicate to Hospitalman M_ M. F_ U. S. Navy, certain indecent language, to wit “You trick a_ s_, get your p_ a_ out here,” or words that effect.
Specification 2: In that Airman A_ O. K_(Applicant), U.S. Navy, U S Naval Air Station, Sigonella, Sicily, Italy on active duty, did at U S Naval Air Station Sigonella, Sicily, Italy, on or about 30 July 1999, wrongfully communicate to Hospitalman M_ M. F_, U.S. Navy, a threat.

990825*:	Additional Charge I: Violation of the UCMJ, Article 92-Failure to obey a lawful order
Specification 1: In that Airman A_ O. K_(Applicant), U S Navy, U S Naval Air Station, Sigonella Sicily Italy on active duty did at U S Naval Air Station Sigonella Sicily Italy, on or about 14 August 1999, violate a lawful general order, to wit Military Protective Order dated 30 July 1999 by wrongfully approaching the vehicle of Hospital Corpsman M_ M. F_, U.S. Navy.
Specification 2: In that Airman A_ O. K_(Applicant) U S Navy U S Naval Air Station, Sigonella Sicily, Italy on active duty, did, at U.S. Naval Air Station, Sigonella, Sicily, Italy, on or about 25 August 1999, violate a lawful general order to wit Military Protective Order dated 20 August 1999 by wrongfully attempting to drive the vehicle of Hospital Corpsman M_ M. F_ U. S. Navy, while being driven by the said Hospital Corpsman F_, off the road.
Additional Charge II: Violation of the UCMJ Article 128-Assault
Specification 1: In that Airman A_ O. K_(Applicant), U. S. Navy, U S Naval Air Station, Sigonella, Sicily, Italy, on active duty, did, at U.S. Naval Air Station, Sigonella, Sicily, Italy, on or about 14 August 1999, unlawfully strike Airman B_ A. S_, U.S. Navy on the head with her shoe.
Specification 2: In that Airman A_ O. K_(Applicant), U.S. Navy, U.S. Naval Air Station, Sigonella, Sicily, Italy, on active duty, did, at U.S. Naval Air Station, Sigonella, Sicily, Italy, on or about 14 August 1999, assault Aviation Boatswain’s Mate (Fuels) Second Class A_ R. P_, U.S. Navy, by striking him with her shoe.
Specification 3: In that Airman A_ O. K_(Applicant), U.S. Navy, U.S. Naval Air Station, Sigonella, Sicily, Italy, on active duty, did, at Highway SP-105, Province of Catania, Sicily, Italy, on or about 25 August 1999, commit an assault upon Hospital Corpsman M_ M. F_, U.S. Navy, by driving her vehicle at the said Hospital Corpsman F_, with a means likely to produce death or grievous bodily harm, to wit: by ramming her vehicle into the said Hospital Corpsman F_’s vehicle in an attempt to drive her off the road.  [* Date estimated.]

990825:	NJP held, Applicant reprimanded and case dismissed.  No further information found in service record. [Extracted from Commanding Officer’s letter dated 000616.]

9911XX*:	Applicant counseled at XOI for using provoking speeches to a member of a working party. Applicant issued a page 13 counseling/warning removing her frocking to E-4. The case was dismissed and she was counseled by the Command Master Chief. [*Extracted from Commanding Officer’s letter dated 000616, specific date of XOI not available.]

UNDATED*:	Applicant counseled at informal XOI for provoking gestures (flipped off Master Chief) on 000222. XO recommended NJP and Applicant elected court-martial. [*Extracted from Commanding Officer’s letter dated 000616.]

000531:	Applicant to formal XOI. [Extracted from Commanding Officer’s letter dated 000616.]

000602:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct – commission of a serious offense.

000605:	Applicant advised of rights and having consulted with counsel, elected to submit a written statement, to obtain copies of the documents used to support the basis for the separation and to request GCMCA review.

000616:	Commanding Officer, U.S. Naval Air Station, Sigonella recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “AZAN K_(Applicant) reported to U.S. Naval Station, Sigonella on 19 April 1999.  On 30 July1999, she verbally communicated a threat to another military member and was issued a Military Protective Order.  On 14 August 1999, she broke that protective order and assaulted the individual along with two others.  She came before me at Nonjudicial Punishment (NJP) on 25 August 1999 where I reprimanded her and dismissed the case.  In November of 1999, AZAN K_(Applicant) used provoking speeches to a member of a working party.  She was taken to formal XOI where she was issued a Page 13 Counseling/Warning removing her frocking to Petty Officer Third Class.  The case was dismissed and she was counseled by our Command Master Chief.  On 22 February 2000, AZAN K_(Applicant) “flipped off” her Master Chief and was written up for provoking gestures.  The executive officer conducted an informal XOI and recommended her case be taken to NJP.  AZAN K_(Applicant) refused NJP and elected a court-martial.  The trial service office recommended a formal XOI and on 31 May 2000, it was held.  At XOI, AZAN K_(Applicant) disrespected my executive officer in front of several witnesses who have provided statements.  This behavior can not be tolerated.  AZAN K_(Applicant) has proven herself time and time again to be a disrespectful individua1 toward senior authorities and other military members as well.  She has been a burden since reporting on board Naval Air Station Sigonella.  Her conduct does not conform to the standards and regulations of the Navy.
I directed that AZAN K_(Applicant) be separated from the naval service under General (Under Honorable Conditions).  She has no potential for further naval service.”

000619:	Applicant’s letter requesting GCMCA review and requesting retention.

000627:	Commander, Fleet Air Mediterranean determined evidence supports the reason for processing and that separation is warranted and authorized Commanding Officer, U.S. Naval Air Station Sigonella to proceed with separation.

000630:	Commanding Officer, U.S. Naval Air Station, Sigonella directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense.

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000804 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends that her good evaluations, community service, and college attendance during service rate an honorable discharge. 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.  A general 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 charges of violating of Articles 90 ( willfully disobeying lawful order of a commissioned officer), 92 (2 specs, violate a lawful general order), 117 (2 specs, provoking speech, gestures), 128 (3 specs, assault), and 134 (1 spec of indecent language and 1 spec of communicating a threat) of the UCMJ.  While not adjudicated, the violation of Article 90 of the UCMJ is considered a serious offense. Separation based on commission of a serious offense does not require that the serious offense be adjudicated by non-judicial or judicial proceedings.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant states she “was discriminated against” and was a victim of “racism.” The Applicant bears the burden of presenting substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support her contention of discrimination or racism.  The Applicant’s statements alone do not substantiate her claim. 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), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION 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 134 – indecent language and communicating a threat, Article 92 – failure to obey a lawful order, Article 128 – assault, Article 90 – willful disobedience of a superior commissioned officer.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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