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

 ex-ACAR, USN
Docket No. ND00-00934

Applicant’s Request

The application for discharge review, received 000719, 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, 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 three to two 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.  Since the date of my discharge I never felt I should have been given a less than honorable discharge.  The only thing I stated at my Captain's Mast hearing was that I wanted out of the Navy.  I was an Air Traffic Controller on Board U.S.S. SARATOGA.  After arriving on Board I noticed in my own opinion, that minorities were not being equally treated in the Air Ops Division.  The Navy spent a lot of money sending me to ATC "A" School and the only good I saw from my school training was cleaning a head, mopping a deck, painting and the list goes on.  The job I signed on to do in my own opinion, would have never materialized so long as I was stationed on the SARATOGA.  It was also brought to my attention that after my discharge, an investigation took place within the Air Ops Division to check the trading methods in the CATCC office.  I understand that my discharge was an attempt to make me out of the CATCC office.  Now that it's approaching 8 years since my separation, I respectfully request that my discharge be upgraded to Honorable.  I understand that with an upgraded certain avenues and door could possible open for me and my family.  Your consideration in matter would greatly be appreciated.  Thank you.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890724 - 900715	COG

Period of Service Under Review:

Date of Enlistment:  900716		Date of Discharge:  920914

Length of Service (years, months, days):

	Active:    02  01  29
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rate:  ACAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.20 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

900717:	Applicant briefed on Navy's policy on drug and alcohol abuse.

911031:	NJP for violation of UCMJ, Article 92 (3 specs):  (1) Failure to obey a lawful order, to wit: wrongful possession of alcohol in barracks, (2) violation of a lawful written order by wrongfully consuming alcohol underage, (3) Violated a lawful regulation by wrongfully allowing unauthorized personnel (female) into the barracks.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 30 days, reduction to ACAR.  Forfeiture for 1 month and restriction and extra duty suspended for 6 months).  No indication of appeal in the record.

920805:	NJP for violation of UCMJ, Article 92: Fail to obey a lawful order by failing to attend physical fitness training on 29 June 1992, 3, 6, 8, 10, 20 and 22 July 1992.
	Award: Forfeiture of $250 per month for 2 months, restriction for 30 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

920805:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920805:  	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.

920816:	Medical officer evaluation:  Applicant found not chemically dependent.  [Date extracted from CO's message dated August 18, 1992.]

920818:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

920901:	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 920914 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 inequitable (D and E).

In response to the applicant’s issue, the Board thoroughly reviewed the applicant’s service record, NJP’s, and performance evaluation average.  The Board determined that, in accordance with SECNAVINST 5420.174C, Chapter 9, Section 9.3, there is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.  Accordingly, the Board voted to grant relief in the form of an upgrade of characterization to general (under honorable conditions).  The applicant’s misconduct of record does not support an upgrade to fully honorable.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  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 still 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), 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 92, for failure to obey a lawful order, 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