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

 ex-HM3, USN
Docket No. ND99-00666

Applicant’s Request

The application for discharge review, received 990415, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000306.  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 as directed by BUPERS as GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.  However, the NDRB did note an administrative error in the issue of the original DD Form 214 which improperly stated the applicant’s character of discharge as Other Than Honorable.  Accordingly, the NDRB grants partial relief to the applicant and directs the reissue of the DD Form 214 with the characterization of service as: “GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	(EQUITY ISSUE) His UCMJ violation notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant an Honorable separation.
2.	(EQUITY ISSUE) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Letter from Judge Advocate General Corps
Letter from applicant
Copy of Discharge Request from applicant
Copy of additional charge
Copy of Acknowledgement of Rights
Copy of DD Form 214
Copies of Enlisted Performance Evaluation Reports (7pgs)
Copy of Performance Information Memorandum
Copy of Appointment to the command Retention Team as Division Career Counselor
Letter from applicant
Character Reference Letters (3)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			881104 - 920408	HON
	Inactive: USNR (DEP)	881029 - 881103	COG

Period of Service Under Review:

Date of Enlistment:  920409		Date of Discharge:  950621

Length of Service (years, months, days):

	Active:    03  02  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  6 

Education Level:  12			AFQT:  84

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  3.60 (3)		OTA:  3.86

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC, SASM(3RD), GCA, KLM, NUC 

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:

920409:	Reenlisted at NSHS BETH DET PORTSMOUTH, VA for 6 years.

950228:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
	Award:  Extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

950303:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950303:  	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.

950428:	Commanding officer recommended discharge by reason of misconduct due to the commission of a serious offense. The Commanding Officer did not make a recommendation on the applicant’s characterization of service. 

950601:	BUPERS directed the applicant's discharge General under honorable conditions by reason of misconduct.

950621:	Applicant discharged at PERSUPPDET Bethesda, MD with an Other Than Honorable discharge. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950621 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 NDRB noted the applicant’s DD-214 was improperly issued as directed by BUPERS.  BUPERS directed the applicant’s discharge as General (under Honorable conditions).  PERSUPPDETT Bethesda issued the applicant an under Other Than Honorable discharge.  The applicant’s DD-214 shall be reissued to read “General (Under Honorable Conditions).” Partial relief is granted to correct this error.

The applicant’s first issue (equity) states that his otherwise creditable service period is sufficient to warrant an Honorable separation.  The NDRB found that the applicant’s violation of UCMJ Article 128, assault, a serious offense which could result in a punitive discharge at a Court Martial, weighed against the positive aspects of the applicants service warranted the general under honorable conditions discharge.  Relief not warranted.
 
The applicant’s second issue based on post service conduct. 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, DC  20374-5023