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

 ex-DCFN, USN
Docket No. ND00-00928

Applicant’s Request

The application for discharge review, received 000725, 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 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  In regards to item eight, the issues that I have presented in my previous attempt to upgrade my discharge, there is nothing that has changed. Again, I state that I have continued to go forward within my personal and professional life.  However, I have continued with the desire to be reinstated into the United States Navy.  I know the procedure for the upgrade is not one to take lightly.  I know that I had not ever had the desire to be discharged from the United States Navy.  Due to circumstances that I have been able to complete, there is nothing that I would like more than to continue on in United States Navy and to continue on with the service to my country. Is sincerely hope that you will take into consideration the fact that during my time of service, excluding personal complication.  I did all that I was capable of doing to be nothing less than the best fireman, I was capable of being.  The personal complications that were preventing me from doing so have been resolved, and I would appreciate the upgrade of my discharge, also to insure that they will I know that I am capable of being the person that is expected of me, I would like to on, and reenlist into the United States Navy.  Sincerely

Documentation

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

Copy of DD Form 214
Letter from United States House of Representatives dated May 24, 2000
List of names and addresses
Character reference dated May 29, 2000
Character reference dated May 30, 2000
Character reference dated May 21, 2000
Applicant's resume

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960207 - 960708	COG

Period of Service Under Review:

Date of Enlistment:  960709				Date of Discharge:  990801

Length of Service (years, months, days):

	Active:    03  00  23
	Inactive:  None

Age at Entry:  17 Parental Consent			Years Contracted:  4

Education Level:  12					AFQT:  31

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSR

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

981003:	NJP for violation of UCMJ, Article 86: Absence without leave 0730-1120, 27Sep98, violation of UCMJ Article 92: Dereliction in the performance of duties.
	Award: Restriction for 30 days, reduction to DCFN.  Reduction suspended.  No indication of appeal in the record.

990520:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0730, 9May99 to 0737,10May99 (1 day), (2) Unauthorized absence from 0730-0744, 12May99, violation of UCMJ Article 107: False official statement on 13May99, violation of UCMJ Article 134: Adultery on 26Feb99 to May 1999, to wit: wrongfully have sexual intercourse with a woman not his wife.
	Award: Restriction and extra duty for 30 days, reduction to DCFN.  No indication of appeal in the record.

990723:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

990723:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990609:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  DCFN (applicant) has committed a serious offense.  At a minimum, the time and energy spent in dealing with his evasive and dishonest conduct have drained the patience of a large portion of this command's leadership.  All reasonable efforts have been extended to Fireman (applicant) to help him resolve his personal problems, to no avail.  He lied on numerous occasions when questioned about his actions leading to this most recent adultery charge.  Fireman (applicant) has proven his ability to act honestly and be forthright.  His performance has been generally less than acceptable.  The serious charge of adultery coupled with the hard fought attempts to steer this sailor in the right direction demand his administrative separation from the service.  His characterization of service has been anything but honorable.  I make my strongest recommendation for other than honorable.  Processing for separation initiated after Commanding Officer's Non-Judicial Punishment on 20 May 1999.  Member is not Fleet Reserve/Retirement eligible.  Do not recommend transfer to the Individual Ready Reserve

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990801 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 response to the applicant’s issue, 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.  

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence, dereliction of duty, false official statement, and adultery.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant provided three character references and a resume as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, for false official statement, 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