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

ex-ENS, USNR
Docket No. ND00-01051

Applicant’s Request

The application for discharge review, received 000915, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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.  Applicant's DD Form 214 incorrectly reflects an "honorable" discharge instead of "general under honorable conditions" as directed by the Secretary of the Navy.  The Board's review was based upon applicant receiving a "General".  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: BUPERS ORDER 2249 of 99SEP14 & SECNAVINST 1920.6A [administratively corrected].

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member proffers that his OIC abused his authority over him by bullying him around, harassing him by writing him up for the most minor of offenses and by misleading superior officers regarding his true behavior in order to end his Navy career.  On this basis, he opines that his characterization of service is unjust, undeserved and warranting upgrade.

2.  (Equity Issue) This former member further requests that the Board include provisions 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:

Copy of DD Form 214
Applicant's ltr to the Board dtd 13 Feb2000
Witness ltr from Lt G_ F_, USN, dtd 22 Jan 1999 (4 pages)
Witness ltr from LCDR B_ N. M_, USN, dtd 2 Feb 99 (3 pages)
Character Reference from LTJG E_ B_, SC, USNR, dtd 18 Mar 1999

PART II - SUMMARY OF SERVICE

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

	Active:   USNR (OCUI)	970208 - 970508	Commission
	Inactive: USNR (AOC)	970121 - 970207	To report AOCS

Period of Service Under Review:

Date of Commission:  970509	Date of Discharge:  990930

Length of Service (years, months, days):

	Active:    02  04  22
	Inactive:  None

Age at Entry:  29			Years Contracted:  8

Education Level:  16+		AFQT:  N/A

Highest Grade:  ENS

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, AFEM, OSSR

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  BUPERS ORDER 2249 OF 99SEP14 & SECNAVINST 1920.6A [administratively corrected].

Chronological Listing of Significant Service Events:

990319:	NJP for violation of UCMJ, Article 89:  on or about 10 Jun 98, behave himself with disrespect toward LCDR W_ J. O_, USN, his superior commissioned officer known to applicant to be his superior commissioned officer by saying to LT G_, "I will slit my wrist before I taken an order from O_" & "…and can tell your boss I said he can fuck-off" or words to that effect.
Violation of UCMJ Article 89: was at the Diego Garcia Officer's Club, on or about 08 June 98, a public place, to wit:  Officer's Club patio, Diego Garcia, BIOT, drunk and disorderly to the disgrace of the armed forces.
	Award:  Punitive letter of reprimand and restriction to quarters for 30 days.  No indication of appeal in the record.

990319:	Letter of Reprimand issued.  Advise of appeal action.

990322:	Applicant did not appeal the imposition of non-judicial punishment and did not submit a rebuttal to the letter of reprimand.

990402:	Report of NJP.  Recommended that applicant not be required to show cause.

990702:	CHNAVPERS recommended to the Secretary of the Navy that applicant be discharged with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

990728:	SECNAV approved the applicant's discharge as recommended by CHNAVPERS.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990930 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense (A and B), as directed by the Secretary of the Navy.  The applicant’s Form DD 214 incorrectly shows the applicant received an Honorable discharge.  A recommendation to correct this administrative error has been made to the Chief of Naval Personnel.  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).

Issue 1.  The applicant states his characterization of service was unjust, undeserved and warrants upgrade because, the OIC abused his authority over him by bullying him around, harassing him and misleading superior officers.  The character reference letters provided by the applicant, although very compelling, did not mitigate the misconduct cited by the Commander, Patrol Wing One, at NJP. The Board determined there was insufficient documentation to warrant an upgrade to the applicant’s discharge, based on issue number 1.  Relief denied.

Issue 2.  The applicant petitions the NDRB to consider post-service conduct as justification to upgrade his discharge.  The applicant did not provide any documentation to demonstrate any post-service accomplishments.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.
Pertinent Regulation/Law (at time of discharge)

A.  The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

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 89 (disrespect towards a superior commissioned 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