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

ex-SR, USN
Docket No. ND01-00538

Applicant’s Request

The application for discharge review, received 010320, 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 designate a representative on the DD Form 293.

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 unanimous that the character of the discharge shall not change.  The discharge shall remain: ENTRY LEVEL SEPARATION/Entry level performance/conduct, authority: NAVMILPERSMAN, Article 3630200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  A First Class Petty Officer attached to my initial company in basic training provoked me verbally and physically during my sixth week of training.  I was forced to defend myself, and, as a result, I was set back.  Nothing happened to the man who instigated the entire episode, yet I was unjustly punished, and my military career ruined.  I feel that my conduct was honorable, and my discharge should be characterized that way.

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)	910403 - 910528	COG

Period of Service Under Review:

Date of Enlistment:  910529		Date of Discharge:  910911

Length of Service (years, months, days):

	Active:    00  03  13
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  GED		AFQT:  32

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks): No Marks in record.

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

ENTRY LEVEL SEPARATION/Entry level performance/conduct; authority:  NAVMILPERSMAN, Article 3630200.

Chronological Listing of Significant Service Events:

910613:	Retention Warning:  Applicant advised of deficiency in conduct evidenced by your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities.   Corrective actions identified.  Sources of assistance included.  Advised: further deficiencies may result in disciplinary action and administrative separation.  All deficiencies during current enlistment will be considered.  Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions.  Receipt acknowledged.

910829:	NJP for violation of UCMJ, Article 91:  Having received a lawful order from BT1 K. E. J_, to return to training, on or about 1500, 27Aug91, willfully disobey the same.
	Award:  Oral reprimand.  No indication of appeal in the record.

910829:	Retention Warning:  Applicant advised of deficiency in conduct evidenced by violation of UCMJ Article 91 - insubordinate conduct toward a first class petty officer.  Corrective actions identified.  Sources of assistance included.  Advised: further deficiencies may result in disciplinary action and administrative separation.  All deficiencies during current enlistment will be considered.  Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions.  Receipt acknowledged.

910904:	Retention Warning:  Applicant advised of deficiency in conduct evidenced by violation of UCMJ, Navy rules and regulations, demotivated, negative attitude, improper conduct/behavior, etc.   Corrective actions identified.  Sources of assistance included.  Advised: further deficiencies may result in disciplinary action and administrative separation.  All deficiencies during current enlistment will be considered.  Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions.  

910905:	Applicant notified of intended recommendation for discharge by reason of entry level performance and conduct.  Advised least favorable characterization of service would be entry level separation.

910905:	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.  Did not object to the separation.

910909:	CO, RTC, San Diego, CA directed the applicant's discharge under entry level separation by reason of entry level performance/conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910911 with an entry level separation by reason of entry level performance/conduct (A).  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 (C and D).

The Board found that the applicant was awarded CO’s NJP on 910829 for failing to obey an order.  The applicant received 2 retention warnings following this NJP.  He failed to heed these warnings advising him that he would not be retained if there was further misconduct and he was therefore administratively separated for entry level performance/conduct with characterization of entry level separation (uncharacterized).  The applicant states in issue 1 that his service was honorable and “should be characterized that way.”  An entry level separation (uncharacterized) characterization is the normal characterization for those members being separated while in an entry level status.  This characterization is neither favorable nor unfavorable.  This characterization is based on the fact that there are no observed evaluations of which to base any other type of characterization.  No relief will be granted based on this issue. 

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 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 15560A), 15 June 1987 until 
14 Aug 91, Article 3630200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ENTRY LEVEL PERFORMANCE CONDUCT

B.  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.  

C.  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.

D.  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