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

 ex-GMG3, USN
Docket No. ND99-00936

Applicant’s Request

The application for discharge review, received 990702, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The applicant requested a documentary record discharge review.  The applicant listed the Military Justice Clinic as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000331.  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, and the Board’s vote 3 to 2 that the reason for the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL) / MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	The applicant’s discharge is improper because the applicant should have been discharge as a weight control failure and not due to misconduct.  The misconduct charge had been dealt with and fines and restitution were made.
2.	The applicant’s discharge is inequitable because it was too harsh and proper consideration were not given to a previous honorable discharge.  B. Evaluations; -C. less than four months remaining under the enlistment.

Documentation

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

Copy of DD Form 214.
Retention Warning 
Driver license reinstatement letter from the Department of Public Safety
Civilian conviction Administrative Remarks from applicant’s service record
Payment authorization form from the Clerk of the Circuit Court of Jacksonville, Florida

PART II - SUMMARY OF SERVICE

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

	Active:   USN			880421 - 931215	HON
	Inactive: USNR (DEP)	880412 - 880420	COG

Period of Service Under Review:

Date of Enlistment:  931216		Date of Discharge:  970807

Length of Service (years, months, days):

	Active:    03 07 10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rate:  GMG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (3)	Behavior:  3.80 (3)		OTA:  3.76 (4.0 scale)

Military Decorations:  NAM

Unit/Campaign/Service Awards:  MUC, SSDR(2), SWASM (w/ Bronze star), GCM, Battle E

Days of Unauthorized Absence:  None 

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

UNDER HONORABLE CONDITIONS (GENERAL) / MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

960327:	Civilian conviction:  Duval County, State of Florida, (1) Driving while license suspended, (2) Speeding, and (3) Obtaining property with worthless check.  
	Action by Civilian Authorities: (1) Pled no contest, adjudication of guilt withheld, $125 fine, (2) Discharged, and (3) Pled no contest, adjudication of guilt withheld, $25 fine.

960327:	Retention Warning:  Advised of deficiency (civilian conviction ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970506:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970521:  	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.

970714:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a civilian conviction, and weight control failure.  Commanding officer’s comments: “GMG3 C____’s misconduct as evidenced by his civilian conviction is not consistent with that expected of a petty officer in today’s Navy.  GMG3 C___ is a substandard performer who shows no initiative or drive to increase his military or professional knowledge and reflects poor military bearing and personal behavior.  Petty Officer C__ has recently failed his fourth consecutive physical readiness test and has been on the remedial PT program at Naval Station Mayport.  He has waived his right to an Administrative board indicating he no longer desires to be in the military.  Based on his actions, GMG3 C___ is no longer suitable for naval service.  Therefore, I recommend that he be discharged with an General discharge as soon as possible”.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970807 under honorable conditions (general) 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).

Responding to the applicant’s first issue, the Board noted the applicant was dual processed for both commission of a serious offense and weight control failure.  Furthermore, the Board noted that it was proper for the Navy to process the applicant for commission of a serious offense.  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby.  Relief is therefore denied on the basis of this issue.

Regarding the applicant’s second issue, the applicant submitted no evidence to indicate that he was not given all due consideration concerning his discharge.  The Board reviewed the applicant’s entire service record and found no evidence or mitigating circumstances to indicate that the characterization or reason for the applicant’s discharge should change.  Relief is denied.   

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 14, effective 
03 Oct 96 until 971212, Article 3630605, 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