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

ex-AA, USN
Docket No. ND01-00152

Applicant’s Request

The application for discharge review, received 001116, 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 the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he 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 010503.  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 (verbatim)

1.  On Nov 24, 1990 I was discharge with and other than honorable.  I had a counsel represent me, which I had never seen just talk too twice.  He wrongfully informed me and as a result I received an other than honorable discharge.  All I ask is to be given a chance by the review board to hear my testimony and to upgrade my discharge based on my post-service conduct and post-service accomplishment.  I thank you for your time.  I would like to come back in the Navy to give a chance once again to serve my country as a Navy Reserve Paramedic.

Documentation

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

Resume
Letter of Reference/Recommendation
Employment Reference Letter
Performance Evaluation Documents (23pgs)
Letter from Applicant 
Letter from Applicant's wife
Letter from Applicant mother
Copy of Outstanding Performance Certificate
Copy of Certified Lab Instructor Certificate
Copy of Certificate of Achievement (AEMT Paramedic Course)
Copy of Recertification for Advance Emergency Medical Technician
Copy of American Heart Association Certificate (Heartsaver AED program)
Copy of Certificate of Appreciation (Special Operation Combat Medic/EMT-Parademic Clinical Rotation Class 03-00)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	890519 - 890604	COG

Period of Service Under Review:

Date of Enlistment:  890605		Date of Discharge:  911024

Length of Service (years, months, days):

	Active:    02  04  20
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  28

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (3)	Behavior:  2.80 (3)		OTA:  3.33

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:

911003:	NJP for violation of UCMJ, Article 134: Violate a lawful written regulation, 18 U.S.C. Sect 922(1)(A) Unlicensed dealing in and transporting firearms, on or between 910905 and 910925.
	Award:  Forfeiture of $463.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

911009:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Extracted from CO's message].

911009:  	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 [Extracted from CO's message].

911010:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

911018:	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 911024 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 (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 (D and E).

In the applicant’s issue 1, the Board found that the applicant’s post service conduct was not enough to outweigh the serious misconduct committed while in the service.  The applicant was brought to CO’s NJP for unlicensed dealing in and transporting 7 firearms, from 910905 to 910925.  The applicant could have received a court martial for this offense, which could have resulted in a Bad Conduct discharge.  

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant 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.

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 134, violation of a lawful written regulation 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