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

 ex-AR, USN
Docket No. ND01-00614

Applicant’s Request

The application for discharge review, received 010404, 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.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  This former member requests upgrade of his characterization of service because he regrets his misconduct of record, has worked hard to improve himself post service and would now like to reenlist.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Character/job reference undated
Copy of police record check
Character reference dated March 27, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940420 - 940709	COG

Period of Service Under Review:

Date of Enlistment:  940710		Date of Discharge:  970911

Length of Service (years, months, days):

	Active:    03  02  02
	Inactive:  None

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  34

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (4)	Behavior:  2.25 (4)		OTA:  2.58

Military Decorations:  None

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

Days of Unauthorized Absence:  68 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970307:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 13Jan97 to 14Jan97, (2) Unauthorized absence from 11Feb97 to 20Feb97, (3) Unauthorized absence 1200, 20Feb97 to 0700, 6Mar97 (14 days/surrendered).
	Award: Forfeiture of 1/2 pay per month for 1 month, restriction and extra duty for 45 days, reduction to AA.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

970604:	Applicant apprehended by civilian authority on charges of 4th degree assault offense.

970715:	Civilian conviction Kitsap County Court.
	Sentence: Jail for 30 days, fined.  Returned to military control at 1600, 15Jul97.

970818:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (5 specifications)
	Specification 1: Unauthorized absence from 1May97 to 2May97 (1 day).
	Specification 2: Unauthorized absence from 4May97 to 5May97 (1 day)
	Specification 3: Unauthorized absence from appointed place of duty on 1600, 24May97, to wit: restricted muster.
	Specification 4: Unauthorized absence from 2Jun97 to 3Jun97 (1 day).
	Specification 5: Unauthorized absence 0710, 4Jun97 until 1500, 15Jul97 (41 days/apprehended).
	Charge II: violation of the UCMJ, Article 87:
	Specification: Miss movement through design on 17Jun97.
	Finding:  to Charge I and II and the specifications thereunder, guilty.
	Sentence: Confinement for 10 days, reduction to AR.
	CA action 970825:  Sentence approved and ordered executed.

970826:	Applicant released from confinement.

970902:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct under the UCMJ in your current enlistment.

970902:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970904:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

970910:	COMCRUDESGRU THREE 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 970911 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 (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 representative’s two post-service equity issues, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant provided two letters of recommendation from his employers and a police record check as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record and documentation of community service in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  In addition, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.  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.  Relief denied.

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 86 (unauthorized absence for a period in excess of 30 days), and Article 87 (missing ship’s movement), 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