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

 ex-HN, USN
Docket No. ND99-00856

Applicant’s Request

The application for discharge review, received 990609, 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 designate 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, 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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of DD Form 214
Letter of Recommendation from R_ H. H_, MD dated May 25, 1998

PART II - SUMMARY OF SERVICE

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

	Active:    USN		890621 - 931129	HON
					830627 - 890620	HON
					790926 - 830626	HON
	Inactive:  USNR (DEP)	790413 - 790925	COG

Period of Service Under Review:

Date of Enlistment:  931130		Date of Discharge:  950425

Length of Service (years, months, days):

	Active:    01  04  26
	Inactive:  None

Age at Entry:  32			Years Contracted:  2

Education Level:  12			AFQT:  55

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)	Behavior:  3.4 (2)		OTA:  3.5

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR(3), M16 Rifle Expert, GCM(3), NDSM, 45 Caliber Pistol Expert, NAM(W/Gold Star), CINCPAC LOC 

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:

9401107:	NJP for violation of UCMJ, Article 121:  larceny in that member did on board Naval Hospital Charleston, on or about 0915 07NOV94, steal a video tape and a pack of Certs, of a value of $14.35, the property of Navy Exchange.
	Award:  Forfeiture of ½ months pay for 2 months, restriction and extra duty for 15 days, (suspended for 6 months).  No indication of appeal in the record.

950314:	Suspension of punishment given at 941107 NJP is vacated.

950321:	NJP for violation of UCMJ, Article 92:  failure to obey an order or regulation, violation BUPERSINST 1430.16 (ADVMAN) instructions for navy advancement exam.  Specification:  in that member did, at Naval Hospital Charleston, on or about 0700 14 MAR95 violate a lawful general regulation, to wit:  BUPERS Instruction 1430.16 (ADVMAN) Instruction for Navy Exams, dated 11-94 by wrongfully bringing material into the examination which had information relating to the Corpsman rating.
	Award:  Restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

950405:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ Article 92: failure to obey an order or regulations, violation BUPERSINST 1430.16 (ADVMAN) Instructions for Navy Advancement Exam, and violation of UCMJ Article 121: larceny.

950407:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to a minimum of 2 working days to respond to the Notice of Notification Procedure Proposed Action.

950410:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  "HM3 (Applicant)'s disregard for proper conduct and his behavior are inconsistent with good order and discipline.  He has no potential for future naval service.  Therefore, I strongly recommend that HM3 (Applicant) be separated from the naval service with a discharge of Other Than Honorable Conditions."

950412:	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 950425 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant introduced no decisional issues for consideration by the Board.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey an order or regulation, 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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  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.

E.  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, DC  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