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

ex-EMFR, USN
Docket No. ND01-00541

Applicant’s Request

The application for discharge review, received 010319, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 010808.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The statement of my current employer and friend will show you that I have change from the person I was created to be.  The reason why I believe that my discharge should be change from a other than honorable to a general.  I know that I was wrong in my behavior at the time.  I also know that I was given no support by my superiors.  Their way of dealing with their fellow shipmates were by the use of intimidation.  I would not be intimidated by their tatics.  I also had a hard time believing that my evaluation could have drop from a 4.0 sailor to a 2.4 sailor in that time period.  They would say one things and then do the opposite.  I can say the blame has to go both way they were wrong and I was wrong but no one would listen to the other not even the captain he told me I had a attitude problem and I should be seen and not heard.  Finally, what made me break was the handling of my grandfather message of his death.  It was received on Nov. 15, 1993 but I didn't received it until Nov. 25, 1993.  It was sent to me by a fellow shipmate say that Mr. R_ wanted you to have this.  Why I think this is a problem.  I had a death in my family in 1992 and I was treated much different the chaplain sat down and explain to me what had happen.  I got the message when they got it not ten days later by messenger, and that is my reasons for upgrade in my discharge.

Documentation

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

Copy of DD Form 214
Character/job reference dated March 9, 2001
Character reference dated March 2, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900613 - 901125	COG

Period of Service Under Review:

Date of Enlistment:  901126		Date of Discharge:  940603

Length of Service (years, months, days):

	Active:    03  06  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)	Behavior:  3.45 (4)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930429:	NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty on 19Apr93.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

940331:	NJP for violation of UCMJ, Article 86: (1) Failure to go to place of duty on 13Mar94, (2) Failure to go to place of duty on 14Mar94, violation of UCMJ, Article 91: Disobedience of a lawful order on 14Mar94.
	Award: Restriction and extra duty for 30 days, reduction to EMFA.  Reduction suspended for 3 months.  No indication of appeal in the record.

940505:	Vacate suspended reduction to EMFA awarded at Commanding Officer's NJP of 31Mar94.

940505:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730-0805, 27Apr94, violation of UCMJ, Article 91: Willful disobedience of a lawful order.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 45 days, reduction to EMFR.  No indication of appeal in the record.

940505:	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 dated 17May94.]

940512:  	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 dated 17May94.]

940517:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

940523:	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 940603 under other than honorable conditions for misconduct due to commission of a serious offense (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 applicant’s issue states:  “The statement of my current employer and friend will show you that I have change from the person I was created to be.  The reason why I believe that my discharge should be change from a other than honorable to a general.  I know that I was wrong in my behavior at the time.  I also know that I was given no support by my superiors.  Their way of dealing with their fellow shipmates were by the use of intimidation.  I would not be intimidated by their tatics.  I also had a hard time believing that my evaluation could have drop from a 4.0 sailor to a 2.4 sailor in that time period.  They would say one things and then do the opposite.  I can say the blame has to go both way they were wrong and I was wrong but no one would listen to the other not even the captain he told me I had a attitude problem and I should be seen and not heard.  Finally, what made me break was the handling of my grandfather message of his death.  It was received on Nov. 15, 1993 but I didn't received it until Nov. 25, 1993.  It was sent to me by a fellow shipmate say that Mr. R_ wanted you to have this.  Why I think this is a problem.  I had a death in my family in 1992 and I was treated much different the chaplain sat down and explain to me what had happen.  I got the message when they got it not ten days later by messenger, and that is my reasons for upgrade in my discharge.”

Regarding the applicant’s allegations that he was treated unfairly, the Board found nothing in the record and the applicant failed to provide documentation to support this issue.  The applicant’s misconduct included three NJP’s over the course of 13 months.  The reason the applicant was discharged was his unwillingness to conform to the standards required of all sailors.  The Board found the Other Than Honorable Discharge accurately characterizes the applicant’s service.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.
The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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