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

 ex-OSSN, USN
Docket No. ND01-00931

Applicant’s Request

The application for discharge review, received 010712, 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 020130.  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 attached letter was all of the important information necessary to help come to an conclusion to correct my records with the government.  Thank you again for taking the time to review these documents.

Documentation

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

Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USN			890510 - 930729	HON
	Inactive: USNR (DEP)	890419 - 890509	COG

Period of Service Under Review:

Date of Enlistment:  930730		Date of Discharge:  950116

Length of Service (years, months, days):

	Active:    01  05  17
	Inactive:  None

Age at Entry:  26			Years Contracted:  5 

Education Level:  12			AFQT:  64

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.08 (5)	Behavior:  2.64 (5)		OTA:  2.68

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NAM, NDSM, SASMw3b*, SSDRw2b*, KLM, AFEM 

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:

930730:	Reenlisted at FCTCLANT DAM NECK VA for 5 years.

940823:	Retention Warning:  Advised of deficiency (Misconduct as evidenced by your non judicial punishment on 940823 for violation of the UCMJ, Article 92, willfully failed to remain awake on 940719), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940823:	NJP for violation of UCMJ, Article 92: Willful dereliction of duty on 940719.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 20 days, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

940922:	Punishment of RIR to E-4 suspended at CO's NJP of 940823 vacated this date due to continued misconduct.
 
940922:	NJP for violation of UCMJ, Article 89: Disrespect to a commissioned officer on 940913.
	Award:  Reduction to E-3.  No indication of appeal in the record.

940928:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.

940930:  	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 submit statements in own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

941010:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

941026:	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 950116 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).

Issue 1.  The Board has no authority to remove debt or influence in any matter any financial transaction concerning the applicant that occurred while on active duty.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization 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’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.

    The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to his characterization of service. The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1994. Under Other Than Honorable conditions most clearly describes the applicant’s characterization of service.  Relief denied.

    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 relief, 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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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