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

ex-MMFN, USN
Docket No. ND00-00103 

Applicant’s Request

The application for discharge review, received 991028, 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To have my discharge upgraded to Honorable.  Because the incident between myself and Chief D_ happened a almost a year before my discharge the date of the incident is 91, Jul, 91 date of my Board is 92Apr01 I've already been to captains's mast for it and should not been put out for the same charge!

Documentation

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

Statement from applicant.
Letter from LT SC, USN
Statement
Copy of Enlisted Performance Record
Memorandum dated 2 February 1992
Copy of dissenting opinion of administrative board
Adsep and evaluation report statement
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880628 - 880707	COG

Period of Service Under Review:

Date of Enlistment:  880708		Date of Discharge:  920409

Length of Service (years, months, days):

	Active:    03  09  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.40 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NEA

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880818:	Retention Warning:  Advised of deficiency (4th Class Swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
890308:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $350 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

910423:	NJP for violation of UCMJ, Article 86: Absent without leave on 3Mar91.
	Award:  Forfeiture of $500 per month for 1 month, restriction for 21 days.  No indication of appeal in the record.

910615:	Non-Punitive Letter of Caution for unsatisfactory performance as an Auxiliaryman.  Consistently fail to be on time at divisional musters, fail to follow direct orders by your superiors, and fail to use the proper chain of command for special liberty purposes.  You are cautioned that continued unsatisfactory performance will result in further administrative and/or punitive actions.

910722:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a chief petty officer (1) disobeying a chief petty officer, (2) treating with contempt and disrespect toward a chief petty officer, violation of UCMJ Article 92: Failure to obey an order, dereliction of duty, violation of UCMJ Article 108: Destruction of military property of the United States, violation of UCMJ, Article 134: Communication of threat.
	Award: Reduction to MMFN.  No indication of appeal in the record.

920127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and the commission of a serious offense.

920131:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920220:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed a pattern of misconduct and found that the applicant had committed commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.  The Board recommends the separation be suspended.

920306:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and the commission of a serious offense. 

920326:	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 920409 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).

In response to the applicant’s issue, the Board determined that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  The applicant received an Administrative Discharge Board which unanimously found him guilty of commission of a serious offence and recommended, by a vote of 2 to 1, that the applicant be discharged with an under other than honorable conditions.  Relief will not be granted concerning this issue.

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.  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), and certification of non-involvement with civil authorities (police records check) 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), effective 15 Aug 91 until 
04 Mar 93, 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 91, for disobeying a noncommissioned petty officer, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

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
		720 Kennon Street SE RM 309
		Washington Navy Yard DC  20374-5023