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

 ex-PHAR, USN
Docket No. ND01-00792

Applicant’s Request

The application for discharge review, received 010522, 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 020221.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I would first like to say to the Discharge Review Board that I appreciate your time in hearing my case. It has been a year and two months now since my discharge from active duty and still to this very day I regret the decisions which I made that led to my eventual discharge.  I don't write this letter for debate the fact, for I am very aware that I left the naval judicial system very little room for leniency at that time. But I do ask that my military record prior to my discharge now be taken into consideration so that I may utilize the benefits I earned while on active duty.  Thank you for your time and patience.

Documentation

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

Copy of Request for Stay in Administrative Processing from Defense Counsel LT. G____ I. D_____ (2pgs)  
Copy of DD Form 214
Copy of Character Reference Letter from MSCS(SW) B_____, NSB Bangor, CBH Officer
Copy of Referral Letter from MSCS(SW) B____
Copy of Letter of Recommendation
Copy of Character Reference Letter
Copy of Reference Letter
Copy of Character Reference Letter
Copy of Letter of Appreciation
Copy of Good Conduct Award    

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	930724 - 940328	COG

Period of Service Under Review:

Date of Enlistment:  940329		Date of Discharge:  000307

Length of Service (years, months, days):

	Active:    06  00  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (39 months extension)

Education Level:  12			AFQT:  51

Highest Rate:  PH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.71 (7)	Behavior:  2.85 (7)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NAVY"E"RIBBON (2), GCM, AFEM, MUC (3), NUC 

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

991214:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 92: Violate a lawful order by wrongfully engaging in sexual relations onboard USS CARL VINSON (CVN-70) on or about 990223, at sea; Charge II: violation of the UCMJ, Article 107: With intent to deceive, make a false official statement to Special Agent R___ A. B____ on or about 990223, onboard USS CARL VINSON (CVN-70), at sea; Charge III: violation of the UCMJ, Article 108: On divers occasions between 9804 and 9902, onboard USS CARL VINSON (CVN-70), without proper authority, sell to two individuals, photo processing supplies of some value, military property of the United States; Charge IV: violation of the UCMJ, Article 134: Wrongfully have sexual intercourse with a woman, not his wife, on board USS CARL VINSON (CVN-70), on or about 990223.    
	Findings:  to Charge I, II, III, and IV, and specifications there under, guilty.  	Sentence:  Confinement for 10 days, reduction to E-1.
	CA 000211:  Sentence approved and ordered executed.
	
000210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000210:  	Applicant advised of his rights and having elected 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.

000228:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000403:	CNMPC 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 000307 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 requested the Board change the discharge so he may receive veteran’s benefits.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants re characterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  The Board carefully reviewed the applicant’s service record and found the discharge equitably assigned.  Relief is denied.

The following is provided for the benefit of the applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required. 

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