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

 ex-EMFN, USN
Docket No. ND99-00743

Applicant’s Request

The application for discharge review, received 990505, requested that the characterization of service on the discharge be changed to honorable.  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 000317.  After a thorough review of the records, 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The reason for change in discharge is for job purposes.  I am trying to apply for jobs and getting turned down because of type of discharge.  I will be very greatful if I will receive an upgrade. 

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR 			931230 - 950321	COG

Period of Service Under Review:

Date of Enlistment:  950322		Date of Discharge:  971208 

Length of Service (years, months, days):

	Active:    02  08  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80		Behavior:  2.20		OTA:  2.67 

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" (2) 

Days of Unauthorized Absence:  28 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

950928:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, and violation of UCMJ Article 92 (3 Specs):  Failure to obey a lawful order.
Award:  Forfeiture of $427 per month for 1 month, and restriction and extra duty for 30 days.  No indication of appeal in the record.

950928:	Retention Warning:  Advised of deficiencies (failure to go to appointed place - 3 offenses, wrongfully possessing an unauthorized Armed Forces Liberty Pass, wrongfully entering the living area of a student of the opposite sex, and wrongfully wearing civilian clothes without proper authorization), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
 
960617:	UA from USS KEARSARGE at NAVSTA NORVA.

960624:	Missed ship's movement this date.

960716:	Surrendered onboard USS KEARSARGE this date (28 days). 

960718:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from on or about 960617 to on or about 90716; violation of UCMJ Article 87:  Missing movement; and violation of UCMJ Article 134:  False official pass.
	Award:  Forfeiture of $437 per month for 2 month(s), restriction and extra duty for 45 days, and reduction to E-1 (suspended for 4 months).  No indication of appeal in the record.

970627:	NJP for violation of UCMJ, Article 128:  Assault on or about 970626.
	Award:  60 days restriction and reduction to E-2.

971007:	NJP for violation of UCMJ, Article 91:  Disrespect towards a Petty Officer on or about 970924; and violation of UCMJ, Article 92:  Failure to obey a lawful order on or about 970924.
	Award:  Restriction and extra duty for 30 days and reduction to E-1. 

971121:	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 pattern of misconduct.

971121:  	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.

971201:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.  Commanding Officer’s comments:  Applicant reported to this command almost two years ago and has been an administrative and disciplinary burden since.  After his first non-judicial punishment on board he temporarily straightened out his act and turned his performance around.  However, in the past six months, applicant has continually involved himself in misconduct.  He has shown a total disregard for the Navy's rules and regulations and has decided to give up on his naval career.  I strongly recommend that applicant be separated from the Navy and that the separation be characterized as Other Than Honorable. 

971205:	Commander, Amphibious Group TWO 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 971208 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 issue states: “The reason for change in discharge is for job purposes.  I am trying to apply for jobs and getting turned down because of type of discharge.  I will be very greatful if I will receive an upgrade.”  The applicant provided the NDRB no documents for post service considerations.  Relief not warranted. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Articles 91, disrespect toward a petty officer, 92, failure to obey a lawful order, 128, assault, 87, missing movement, and 134, false official pass, if adjudged at a Special or General Court Martial

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