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

 ex-SR, USN
Docket No. ND00-00118
 
Applicant’s Request

The application for discharge review, received 991103, 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 Disabled American Veterans as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000725.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service.  The Board’s vote was four to one that the character of the discharge shall change.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Dear Sir or Ma'am, I feel that the discharge given to me was unfair, it was harsh and not just.

Since, leaving the Navy in 1989 I have been a productive citizen I have gotten married and have two beautiful boys.

I work at a steel plant here in Montgomery, Al.  I've been hard working and productive. I came in making $7.30 and hour now I'm making 10.00 a hour that should tell you I'm not a lax person.  Also I've joined the Alabama Army National Guard, this was a chance for me to serve my country and reconcile my self and to my family.

I love the military, I just was young and immature and stupid.

Sir or Ma-am, I sincerely hope that you will upgrade my other than honorable to Honorable, and change my RE-4 code to a RE-1.  I want to continue to better my life for me and my family, and do whats right and serve my country the way that I should have from the beggining.  Sincerely. (applicant)

Documentation

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

Memorandum for discharge upgrade request dated September 11, 1999 from Executive Officer
Memorandum for discharge upgrade request dated September 11, 1999 from Fire Direction Officer
Reference letter from Administrative NCO dated September 15, 1999
Certificate of Achievement dated August 27, 1999
Letter granting waiver for RE4 from Col, GS, AL ARNG, MILPO
Copy of enlistment contract for Army National Guard dated 990127
Copy of Honorable/release from initial tour of active duty for training DD Form 214 from USMCR
Copy of DD Form 214 (Member 1 and 4)
Character reference from pastor
Service school academic evaluation report
Certificate of Training

PART II - SUMMARY OF SERVICE

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

	Active:   USMCR		870702 - 871211	RELAD
	Inactive: USNR (DEP)	880818 - 880908	COG

Period of Service Under Review:

Date of Enlistment:  880909		Date of Discharge:  890519

Length of Service (years, months, days):

	Active:    00  08  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  1.00 (1)		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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:

890104:	Retention Warning: Advised of deficiency (Talking in class.  Sleeping in class.  Talking back to instructor.  Leaving formation.  Jumping formation.  Unauthorized absence from Night School for Academics.  Three job sheets behind class.  Looking at keys while typing.  Using another person's job sheet to do your work.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890119:	NJP for violation of UCMJ, Article 91: Disrespect toward a petty officer on 6Jan89, to wit: by saying "No" and walking away
Violation of UCMJ, Article 92: Failure to obey an order by wrongfully refusing to shave.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890202:	NJP for violation of UCMJ, Article 134: Breaking restriction on 25Jan89.
	Award:  Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890214:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890309:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890310:	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 under other than honorable conditions.

890412:	NJP for violation of UCMJ, Article 134 (5 specs): Breaking restriction.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890421:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

890510:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960801:	NDRB documentary record review Docket Number ND96-01155 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 890519 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 but not equitable (D and E).

In response to applicant’s issue 1, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

The Board determined that the applicant’s generally acceptable personal conduct and performance of duty, when combined with his excellent post-service conduct, mitigated his misconduct.  However, the Board determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable characterization of service.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 
11 Jan 89 until 24 May 89, 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 disrespect toward a 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 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