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

ex-ABEAN, USN
Docket No. ND01-00476

Applicant’s Request

The application for discharge review, received 010305, 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 010615.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I would like to take this opportunity and thank all of you for your time.  I will be brief and hopefully to the point.

My discharge was inequitable because it was based on an isolated incident in 36 months of service with no other adverse action.

I have always, met or exceeded General Standards of duty, I have enclosed copies of my Enlisted Performance Evaluation Reports, In each of the evaluations I meet or I am above standard.  "Excellent conduct, conscientiously complies with regulations.  Always lives up to Navy Core Values: Honor, Commitment, Courage".  These are just a few things listed in the evaluations that I represented.

I have always treated others with fairness and respect, understood the goals, accepted and offered team direction.  I have always contributed to unit cohesiveness and morale.  Never have I condone bias or harassment in or outside the workplace.  My personal job accomplishments were never questioned by my chain of command.

My accomplishments since the Navy stem from my performance and knowledge that I took with me.  I have since worked in the health field and a later accomplishment working at Microsoft.  I have recently taken time out from the professional field to help raise a beautiful little girl.

In the coming months I will be returning to school to further my computer education.  With these small steps I hope to ensure a bright future for my family.

Once again, I thank you for your time.  I appreciate the fact that people can get a second chance.  Respectfully yours,

Documentation

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

Copy of DD Form 214
Copies of applicant's evaluations (4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930716 - 931106	COG

Period of Service Under Review:

Date of Enlistment:  931109		Date of Discharge:  970303

Length of Service (years, months, days):

	Active:    03  03  25
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rate:  ABEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  3.90 (2)		OTA:  3.80	4.0 evals
Performance:  4.00 (2)	Behavior:  3.50 (2)		OTA:  3.50	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASM with Bronze Star

Days of Unauthorized Absence:  4

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

950829:	NJP for violation of UCMJ, Article 91: Disrespect towards a first class petty officer, violation of UCMJ, Article 92: Failure to obey a lawful general regulation.
	Award:  Restriction and extra duty for 20 days, reduction to ABEAA.  Reduction suspended for 6 months.  No indication of appeal in the record.

961126:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward AWC, by saying to him, "you know this is a big ship and accidents happen, so you'd better watch your back mother fucker" on 6Sep96, violation of UCMJ, Article 92: Violate a lawful general regulation on 23Oct96, to wit: using his government travel credit card for personal use, violation of UCMJ, Article 134: Wrongfully communicate to AWC on 6Sep96, to wit: by saying to him "you know this is a big ship and accidents happen, so you'd better watch your back mother fucker", violation of UCMJ, Article 86: Unauthorized absence on 0700, 19Nov96 to 0700, 22Nov96 (3 days).
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

970107:	Applicant to unauthorized absence 0500, 7Jan97.

970108:	Applicant from unauthorized absence 0745, 8Jan97 (1 day/surrendered).

970210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970210:  	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.

970303:	Commanding officer directed 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 970303 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, 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 non-judicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence, disrespect towards a first class petty officer, failure to obey a lawful order, disrespectful in language toward AWC, wrongfully using his government travel card for personal uses and wrongfully communicating a threat.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

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 (E).  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) and certification of non-involvement with civil authorities (police records check) 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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 general 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 "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