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

ex-AA, USN
Docket No. ND99-00630

Applicant’s Request

The application for discharge review, received 990406 requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My first issue is,  I was not being processed out, I requested to be separated through clause in the Milpersman: By reason of convenience of the government on the basis of being a resident alien. 

2.  My second issue is on exhibit A page 1, there is a list of CO’s NJP a disciplinary event, however I had requested captains mast.  This was to take advantage of the commands open door policy to discuss problems.

3.  On the copy I have of exhibit A page 2 my commanding officer recommended a discharge of General Under Honorable Conditions.  I wanted to know if that corresponds    with the records that you have

4.   The last issue I have is respectfully requesting an upgrade to General Under Honorable Condition.  This request is based on the above information and documentation.

Documentation

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

Copy of DD Form 214.
       Applicant’s Special Request Chit dated 930724
       Applicant’s handwritten letter undated 
       CARAEWRON ONE ONE SEVEN Msg Dtg 051534Z Dec 94

PART II - SUMMARY OF SERVICE

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

		Inactive: USNR (DEP)	920911 - 920923	COG

Period of Service Under Review:

Date of Enlistment:  920924			Date of Discharge:  950106

Length of Service (years, months, days):

	Active:    02  03  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)	Behavior:  3.10 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM, AFEM, SSDR, Battle E

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930801:	NJP for violation of UCMJ, Article 90:  Assaulting or willfully disobeying a Commissioned Officer.  Violation of UCMJ Article 91:  Insubordinate conduct toward a Warrant Officer, Non Commissioned Officer, or Petty Officer.
	Award:  Forfeiture of $407 per month for 2 month(s) (one month suspended), restriction and extra duty for 45 days.  No indication of appeal in the record.

940818:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct towards a Non Commissioned Officer, Warrant Officer, or Officer. Violation of UCMJ Article 92: Failure to obey a lawful order or regulation. 
	Award:  Forfeiture of $416 per month for 2 month(s) (one month suspended), restriction and extra duty for 45 days, Reduction in Rate to E-1 (suspended for 6 months).  No indication of appeal in the record.

941121:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of convenience of the government on the basis of being an alien.

940912:	Applicant Special Request Chit dtd 940912 requests separation based on MILPERSMAN Article 3620250 (Separation of Enlisted Personnel by Reason of Convenience of the Government on the basis of being an Alien).  940920 applicant’s Request Chit approved by Commanding Officer.

941121:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

941205:	Commanding officer recommended discharge with a characterization of General (Under Honorable) Conditions by reason of misconduct due to the commission of a serious offense and by reason of the convenience of the government on the basis of being an alien.

941228:	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 950106 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (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).

The applicant’s first issue states: “I (the applicant) was not being processed out, I (the applicant) requested to be separated through a clause in the Milpersman: By reason of convenience of the government on the basis of being a resident alien.”  The NDRB found the applicant was properly dual processed for commission of a serious offense and convenience of the government on the basis of being an alien.  The Milpersman Article 3620250 specifically states that  “that nothing in this article limits the separation of the member under any other article of this Manuel”.  The applicant’s misconduct is documented by two NJP’s.  Both NJP’s, violations of UCMJ Articles 90, 91, and 92, are considered serious offenses due to the possible punitive discharge that could be imposed at courts martial.  Relief not warranted.

The applicant’s second issue states: “on exhibit A page 1, there is a list of CO’s NJP a disciplinary event, however I had requested captains mast.  This was to take advantage of the commands open door policy to discuss problems.”  Upon review of the applicant’s documentation, the NDRB found all the NJP’s properly documented in the service record. 
There is no documentation of request mast in the applicant’s service record.  Relief not warranted.

The applicant’s third issue states: “on the copy I have of exhibit A page 2 my commanding officer recommended a discharge of General Under Honorable Conditions.  I wanted to know if that corresponds with the records that you have.”  The NDRB’s review found the Commanding Officer’s recommended discharge to be General (Under Honorable Conditions).  On review, the separation authority (BUPERS), directed the applicant’s discharge as Other than Honorable due to Commission of a Serious Offense. The NDRB discerned no impropriety or inequity in this issue.  Relief not warranted.  

The applicant’s fourth issue requests the NDRB upgrade the applicant’s discharge based on the information he provided.  The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023