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

 ex-SR, USN
Docket No. ND00-00903

Applicant’s Request

The application for discharge review, received 000714, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to LOS ANGELES, CA.  The applicant listed 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) does not travel, all hearing are held in the Washing ton, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201.  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

1.  (Equity Issue) This former member avers that his UOTHC discharge is to harsh given the minor nature of his UCMJ violation and in light of his overall performance record.  On the basis, he opines that upgrade of his character of service to General (Under Honorable Conditions) is warranted.

2.  (Equity Issue) This former member further request that that Board include provision 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			None
	Inactive: USNR (DEP)	880323 - 880418	COG

Period of Service Under Review:

Date of Enlistment:  880419		Date of Discharge:  901120

Length of Service (years, months, days):

	Active:    02  07  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  26

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.93 (3)	Behavior:  2.93 (3)		OTA:  2.86

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

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:

891106:	NJP for violation of UCMJ, Article 86: Going from appointed place of duty "Pier Sentry" on 891022, violation of UCMJ Article 92: Dereliction of duty "failed to stand a proper watch" on 891022.
	Award:  Forfeiture of $349.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

900117:	Retention Warning:  Advised of deficiency (Misconduct, improper military professional performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900117:	NJP for violation of UCMJ, Article 86: Without authority go from his appointed place of duty "Ship's In port Fire Party" on 891224, violation of UCMJ Article 107: False Official Statement on 891224.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

900117:	Punishment of RIR to SR suspended at CO's NJP of 891106 vacated due to continued misconduct.

900921:	NJP for violation of UCMJ, Article 86: Going from appointed place of duty on 900821, violation of UCMJ Article 91: Disrespectful in language to a superior petty officer on 90821, violation of UCMJ Article 117: Wrongful use provoking gesture on 900821.
	Award:  Forfeiture of $352.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

901009:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by your non-judicial punishment on 891106, 900117, and 900921.

901009:	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.

901010:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

901116:	CNMPC 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 901120 under other than honorable conditions 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).

The applicant’s first issue states:  “(Equity Issue) This former member avers that his UOTHC discharge is to harsh given the minor nature of his UCMJ violation and in light of his overall performance record.  On the basis, he opines that upgrade of his character of service to General (Under Honorable Conditions) is warranted.”  The applicant’s record shows he was found guilty at NJP on three separate occasions for serious offenses (violations that warrant punitive discharge at court martial).  The Board noted that despite counseling from his chain of command, the applicant continued his misconduct.  The applicant’s other than honorable discharge accurately characterized his service.  Relief is not warranted.

The applicant’s second issue states:  “(Equity Issue) This former member further request that that Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 provided no post service documentation for the Board’s consideration.  Relief is not warranted.

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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, 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 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