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

 ex-AK3, USNR
Docket No. ND99-00867

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 personal appearance hearing before the Board in the Washington National Capital Region.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417.  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 (verbatim)

1.  I was having marital and family problems at the time.  Due to my family and the work load that was put on me, I could not keep up with my work.  The senior chief stated I was not performing my job. I was trying however, the Captain wanted to get rid of me because I did not fit into the close network of the unit.  The type of discharge received and the RE Code was too harsh for the type of offense.  This should be reviewed and the discharge upgraded.

2.  (EQUITY ISSUE) This form 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:

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN	R		860515 - 900508	HON
	Inactive: USNR (DEP)	860107 - 860514	COG

Period of Service Under Review:

Date of Enlistment:  900509		Date of Discharge:  931026

Length of Service (years, months, days):

	Active:    03  05  18
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  10 GED		AFQT:  73

Highest Rate:  AK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (7)	Behavior:  3.54 (7)		OTA:  3.69

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER

Days of Unauthorized Absence:  None

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:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey lawful order on 2 May 1991, (2) Failure to be at appointed place of recall.
	Award:  Reduction to AKAN.  Reduction suspended for 6 months.  No indication of appeal in the record.

910517:	Retention Warning: Advised of deficiency (Failure to obey a lawful order and failure to be at appointed place of recall.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930805:	Psychiatry evaluation: Third psychiatric evaluation.  Applicant referred for diagnostic assessment after an incident of domestic violence.  Dx:  Personality disorder NOS (as evidenced by recurrent maladaptive behaviors so consistent as to be a pattern).  Previous testing has apparently revealed prominent narcissistic.

930929:	NJP for violation of UCMJ, Article 92: Derelict in the performance of his duties from 2 July 1993 to 18 August 1993.
	Award:  Reduction to AK3.  No indication of appeal in the record.

931001:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931001:  	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.

931007:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): AK3 (applicant) continues to be an administrative burden on this command.  I have not observed a marked turn around in his performance or personal behavior that would demonstrate a commitment to conform to acceptable Navy standards.
	In making my decision to separate AK3 (applicant), I have taken into consideration enclosure (7).  Enclosure (7) does not meet the requirements for processing for a Personality Disorder at this time.  The benefits of administratively separating AK3 (applicant) due to commission of serious offenses out-weigh the administrative burden he would represent if retained in the Naval Service.
	Accordingly, in the best interest of the U.S. Navy, this command and AK3 (applicant), and in the interest of maintaining good order and discipline, I strongly recommend that he be separated from the Naval Service with a General Discharge, and the he not be recommended for affiliation with the Naval Reserve.

931015:	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 931026 general (under 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).

In the applicant’s issue 1, the Board found that the discharge characterization was equitable and not “too harsh for the type of offense.”  The applicant had 2 very serious NJPs, was given a retention warning and ample time to improve his performance.  
No relief will be granted on the basis of this issue.

In the applicant’s issue 2, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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, 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