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

 ex-MMFA, USN
Docket No. ND99-00783

Applicant’s Request

The application for discharge review, received 990521, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000214.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on three incidents in 59 months of service with no other adverse action.

2.  (EQUITY ISSUE) This former member further requests that the Board include provisions 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:

Six pages from applicant's service record 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910507 - 910515	COG

Period of Service Under Review:

Date of Enlistment:  910516		Date of Discharge:  950427

Length of Service (years, months, days):

	Active:    03  11  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.87 (3)	Behavior:  3.80 (3)		OTA:  3.87

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), BER, SASM, Letter of Commendation

Days of Unauthorized Absence:  9 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910517:	Retention warning: You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse, ie shoplifting.  Awarded 50 hours community service.

910927:	Retention Warning: Advised of deficiency (Poor military performance, to wit: drinking under the age of 21 which is in violation of the UCMJ and the Illinois state law.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920526:	NJP for violation of UCMJ, Article 128: Assault consummated by battery on 26May92.
	Award:  Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFR.  No indication of appeal in the record.

941031:	NJP for violation of UCMJ, Article 128 (2 specs): (1) Assault another by wrongfully punching him in the face with his fists on 17Jul94, (2) Assault another by pushing him in the chest with his hands and slapping him in the face with his hands on 4Sep94.
	Award:  Forfeiture of $531 per month for 2 months, reduction to MMFN.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

950113:	NJP for violation of UCMJ, Article 128: Assault consummated by battery by striking another in the face with his fists on 27Dec94.
	Award:  Forfeiture of $478 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFA.  No indication of appeal in the record.

950220:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950221:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950303:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

950306:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

950403:	BUPERS directed the applicant's discharge general (under 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 950427 general (under 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 term "serious offense" should not be confused with what is considered serious in the civilian world.  The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses:  disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder.  Although all of these offenses come under the broad UCMJ category of "serious offenses," some are clearly more heinous than others.  A person in the military must abide by the standards as set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize.  The applicant’s service was marked with three violations of the UCMJ that are considered serious offenses.  Relief not warranted. 

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 provided no documentation to support an upgrade based on post service conduct.  In fact, the applicant forwarded no post service documentation at all.  Relief not warranted.

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