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

ex-DA, USN
Docket No. ND01-00571

Applicant’s Request

The application for discharge review, received 010327, 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 010928.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 32 months of service with no other previsions incidents and furthermore the person who accused me was later discharged which was a civil service worker because of her behavior.
As you may see my service record only show me as an outstanding sailor as you may see in my letters of commodity and etc. I am also attending school this summer 2001 at JSU in Jackson MS.

Documentation

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

Copy of DD Form 214
Letter to applicant from Jackson State University dated March 6, 2001
Copy of letter of appreciation dated April 16, 1996
Copy of letter of appreciation dated August 22, 1997
Copy of certificate of appreciation dated November 4, 1996
Copy of certificate of appreciation dated February 3, 1997
Copy of evaluation report and counseling record dated 96May24 to 96Jul15 (2 copies), and 96Jul16 to 97Jan15
Copy of letter of commendation dated April 15, 1997
Copy of outstanding physical readiness achievement
Copy of notification of admission to Jackson State University dated March 26, 2001
Copy of college schedule
Copy of financial aid notification dated May 16, 2001
Copy of grades from Jackson State University for 2001 summer

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950901 - 951023	COG

Period of Service Under Review:

Date of Enlistment:  951024		Date of Discharge:  980605

Length of Service (years, months, days):

	Active:    02  07  12
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  DN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  2.25 (4)		OTA:  2.75

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFSM

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:

980225:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Fail to obey U.S. Navy Uniform Regulation, to wit: NAVPERS Article 2201, by having articles attached to or through nipples tongue and navel, (2) Fail to obey U.S. Navy Uniform Regulation, to wit: NAVPERS Article 2201m by having a stud earring in his tongue while in the uniform of the day; violation of UCMJ Article 134: Indecent exposure on 1300, 9Feb98, while in the central sterilization room, willfully and wrongfully expose in an indecent matter to public view his penis.
	Award: Admonition oral/writing; forfeiture of $568 per month for 2 months, extra duty for 45 days, reduction to DA.  No indication of appeal in the record.

980326:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

980408:  	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.

980429:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

980501:	Commander, Naval Base, Norfolk 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 980605 general (under 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).

Issue 1.  The applicant states:  “My discharge was inequitable because it was based on one isolated incident in 32 months of service with no other previous incidents and furthermore the person who accused me was later discharged which was a civil service worker because of her behavior.”  Although the applicant feels his discharge was inequitable based on the length of service, the Board finds that the General discharge equitably characterizes the applicant’s service.  The applicant was found guilty at NJP of two serious military offenses: Violation of UCMJ Article 92- Violation of a Lawful Order, and Article 134- Indecent Exposure.  The Board found no merit in the applicant’s assertion that the person who accused me was later discharged which was a civil service worker because of her behavior.  

The applicant also states his service record shows he was an outstanding sailor.  The Board determined from the available grades in the applicant’s service record that his performance, behavior and overall trait averages were not outstanding but were below average.  Relief denied.

The fact that the applicant is attending a university does not mitigate his misconduct or justify upgrading his discharge.  Relief 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 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 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.  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