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

FOR OFFICIAL USE ONLY

  ex-EOCR, USN
Docket No. ND05-01559

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.  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 20060717.  After a thorough review of the 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 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 discharge is improper due to the fact there was a lack of evidence.  I want to join a reserve unit.  EOE1 S_ was accused of racism by CM’s of NMCB1, not EO’s of NMCB1. S_ has not been accused of any racism at any other time.  Respectfully request discharge changed honorable.”

Documentation

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

Certificate of Completion for completing HVAC Module I, II, III course, dtd June 14, 2004
Certificate of Completion for completing Basic Horseshoeing course, dtd August 18, 2005
Certificate of Completion for completing NRA Personal Protection in the Home course, dtd January 22, 2005
Employment Appreciation Letter, dtd November 21, 2001
Police Record Letter dtd, October 18, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960726 – 19970526		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970527		Date of Discharge:  19980306

Length of Service (years, months, days):

	Active:    00  09  10  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  43

Highest Rate:  EOCR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

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

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142.

Chronological Listing of Significant Service Events: 

980130:	NJP for violation of UCMJ, Article 91 (3 specs):  Disobeying and contempt or disrespect toward warrant (W-1), noncommissioned, or petty officer.
	Specification 1: In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active duty, having received a lawful order form EO1 M_ G_, USN, a petty officer, then known by the said EOCR S_ to be petty officer, to “Quite down and turn the music down”, or words to that effect, did, at Camp Mitchell, U.S. Naval Station Rota Spain, on or about 18 January 1998, willfully disobeying the same.
	Specification 2: In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active duty, having received a lawful order form EO1 R_ E. W_, USN, petty officer, then known by the said EOCR S_ to be petty officer, to “Quite down and turn the music down”, or words to that effect, did, at Camp Mitchell, U.S. Naval Station Rota Spain, on or about 18 January 1998, willfully disobeying the same.
	Specification 3: In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active duty, at Camp Mitchell, U.S. Naval Station, Rota Spain, on or about 18 January 1998, was disrespectful in language and deportment towards EO1 M_ G_, USN, and EO1 R_ E. W_, USN, both superior petty officers, then known by the said EOCR S_ to be superior petty officers, who were then in the execution of their office, by saying to them, “I have batteries, mother f___”, or words to that effect, and by contemptuously holding the latch on the door in the locked position so that they could not enter the barracks room to turn the music down, which actions eventually led the power being secured to the said, EOCR S_’ room.
Violation of UCMJ, Article 92: Violation of other lawful orders, in that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active duty, having knowledge of a lawful order issued by Commanding Officer, US NMCB ONE, to wit: subparagraph (C)(1), NMCNONENOTE 5330 dated 10 July 1997, an order which it was his duty to obey, did, at Camp Mitchell, Naval Station, Rota Spain, on or about 18 January 1998, fail to obey the same by failing to keep his music at a reasonable sound level so as not to disturb personnel in adjacent bunk areas or rooms.  
Violation of UCMJ, Article 116: (2 Specs) Breach of the peace.
Specification 1: In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active, did, at Camp Mitchell, Naval Station, Rota Spain, on or about 18 January 1998, participate in a breach of the peace by wrongfully engaging in a cross burning.
Specification 2: In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active, did, at Camp Mitchell, Naval Station, Rota Spain, from on or about 2 January to on or about 18 January 1998, participate in a breach of the peace by wrongfully making derogatory and racial statements, by breaking glass and shouting and yelling while inside of his barracks room, which conduct was a nature to bring discredit upon the armed forces.  
	Violation of UCMJ, Article 117: Provoking speeches or gestures.
	In that EOCR C_ K. S_, USN, U.S. NMCB ONE, on active, did, at Camp Mitchell, Naval Station, Rota Spain, on or about 18 January 1998, wrongfully use provoking word, to wit: “N_,” “Yankee’s are people from the north of the Mason-Dixon line.” “I’ve got a t-shirt which says ‘The original boys in the hood’ depicting Klan members that I would like to wear over to the Martin Luther King Celebration but it’s back home.”  F_ the Yankees, the South is going to rise again and the Rebels are going to kick their a_,” “My definition of a n_ is basically a lazy black person,” “N_ are just n_ and I’m proud of the fact that Mississippi is still against N_’ and always would be,” “Someone should kill 5 or more n_ so we could get a whole week off,” and “Let’s make a cross and burn it,” or words to that effect towards several members of Alpha Company who were attending a party.
Award:  Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

980204:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your Commanding Officer’s Non-judicial Punishment of 30 January 1998 for violation of the UCMJ, Charge I: Article 91, 2 Specifications of disobeying a lawful order from a First Class Petty Officer, and disrespectful in language and deportment toward a First Class Petty Officer; Charge II: Article 92, Violation of other lawful order by failing to keep music at a reasonable sound level; Charge III: Article 116, 2 Specifications of breach of the peace by wrongfully engaging in a cross burning and making derogatory and racial statements, by breaking glass and shouting and yelling while inside of your barracks room; and Charge IV: Article 117, Wrongfully using provoking words, to wit: using profanity and making racist and derogatory comments on 18 January 1998, all of which occurred during your current enlistment.

980204:	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.

980210:	Commanding Officer, U.S. Naval Mobile Construction Battalion ONE, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “EOCR S_ (Applicant) has no potential for further useful naval service.  EOCR S_ (Applicant) was with this command for only a month before receiving non-judicial punishment for breach of the peace, disrespect and disobeying lawful orders and wrongfully using profanity and making racist statement.  The remarks and actions of EOCR S_ (Applicant) were extremely inflammatory and denote an attitude which is highly detrimental to good order, teamwork, discipline, and loyalty to this, or any, command.  I am particularly concerned that EOCR S_ (Applicant) displayed such gross disrespect toward authority and such bad behavior after just one month on board, and when he was confronted by witnesses at Captain’s Mast with his comments and actions he showed little comprehension or remorse concerning the gravity of what had occurred.  It is my judgment that his attitudes are deeply ingrained and will change only with more years and experience that the Navy can afford to provide.  When at work EOCR S_ (Applicant) is an average worker, but when he is away from work his actions and demeanor cannot be relied upon to be within the standards which are expected of all military members.  EOCR S_s’ (Applicant) total disregard for the Navy’s policy of non-discrimination and equal opportunity; his lack of concern for this fellow shipmates and his own personal health; and his conscience choice to do things his way, cause him to be unreliable and an unacceptable administrative burden to the Navy.  Based on his actions, EOCR S_ (Applicant) is no longer suitable for naval service and therefore I recommend that he be discharged expeditiously with an Other Than Honorable discharge.”

980224:	GCMCA, Commander, U.S. Naval Activities, Spain, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to 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 19980306 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 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 his discharge was improper because there was a lack of evidence.  By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of a Command Investigation dated 19980120 and his Nonjudicial Punishment (NJP) proceedings on 19980130.  The Applicant was awarded NJP for violation of 3 specifications UCMJ Article 91 (Disobeying and contempt or disrespect); Article 92 (Failure to obey other order); 2 specifications of Article 116 (Breach of the peace); and Article 117 (Provoking speeches or gestures).  Violations of Articles 91 and 92 are considered serious offenses because 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.  Typically, the characterization of service for members involved in misconduct due to commission of a serious offense is under other than honorable conditions.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to commission of a serious offense on 19980204 with a least favorable characterization of under other than honorable conditions.  On 19980210, the Commanding Officer, U.S. Naval Mobile Construction Battalion ONE, recommended to Commander, U.S. Naval Activities, Spain, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.  On 19980224, the Commander, U.S. Naval Activities, Spain, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While there is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving service, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted three certificates of completion, an employee appreciation letter, and a police records check for the City of Springdale, Arkansas.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, and documented community service.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, 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 91 (Willfully disobeying and contempt , disrespect toward warrant, noncommissioned, petty officer) and Article 92 (Failure to obey other order).

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