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

ex-FR, USN 
Docket No. ND01-00039

Applicant’s Request

The application for discharge review, received 001017, 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 American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719.  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 three to two 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.  (Equity Issue) The former member 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 this application.

Documentation

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

Statement from applicant dated August 21, 2000
Copy of DD Form 214 (2 copies)
Copy of one page from AR 601-210 dated February 28, 1995 (2 copies)
Seven pages from applicant's service record
Character reference dated July 28, 2000 (2 copies)
Character reference dated January 11, 2000 (2 copies)
Copy of Barton Protective Services, Inc. Performance Review dated July 27, 2000 (2 copies)
Character reference dated August 9, 2000 (2 copies)
Copy of request for reference dated August 12, 1999 (2 copies)
Copy of interviewer's appraisal sheet dated August 11, 1999 (2 copies)
Copy of letter of recommendation dated June 8, 1998 (2 copies)
Copy of verification of earned bachelor of Business Administration (2 copies)
Copy of academic transcript from University of Houston (2 copies)
Copy of academic transcript from Houston Community College System (2 copies)
Character reference dated March 26, 2001
Copy of Certificate of Accomplishment dated November 28, 2000 from H&R Block
Character reference dated March 29, 2001
Copy of letter to Congressman and to Whom It May Concern dated January 9, 2000
Copy of certificate for Urban Insurance Agency Internship Program dated Summer 1997
Copy of secondary academic record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980912 - 990405	COG

Period of Service Under Review:

Date of Enlistment:  990406		Date of Discharge:  991117

Length of Service (years, months, days):

	Active:    00  07  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  16			AFQT:  90

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

990923:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 16Sep99, to wit: fail to complete Mechanical Equipment Homework (ME).
	Award: Oral admonition, restriction for 14 days, reduction to FA.  Reduction suspended for 6 months.  No indication of appeal in the record.

990923:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 92, Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
991006:	Vacate reduction to FA awarded at CO's NJP dated 23Sep99.

991006:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Absent from restriction muster from 2000-2016, 2Oct99, (2) Absent from restriction muster from 0645-0800, 2Oct99, (3) Absent from restriction muster from 1200-1217, 2Oct99, violation of UCMJ, Article 92: Wrongfully possessing material not related to class at NNPTC on 2Oct9.
	Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days, reduction to FR, oral admonition.  No indication of appeal in the record.

991006:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

991006:  	Applicant advised of her rights and having consulted 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.

991020:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): Recommend separating FR (applicant) Misconduct-Pattern of Misconduct and Misconduct-Commission of a Serious Offense with the characterization of discharge being General.

991103:	Commander, Navy Region Southeast directed the applicant's discharge general (under 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 991117 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).

The applicant’s representative submitted the following as issue 1: (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 her application.  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.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with her accomplishments thus far.  However, NDRB experience has shown that applicants with less than five years post-service usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society.  Therefore, the applicant's efforts need to be more encompassing than those provided.  The applicant needs to produce more evidence of a verifiable employment record, more substantial documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  She is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief is not warranted at this time.

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 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 "afls10.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