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

 ex-SN, USN
Docket No. ND01-01080

Applicant’s Request

The application for discharge review, received 010816, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member opines that he was mistreated by his command and that this abuse contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service to full honorable.

2.  (Equity Issue) This former member further requests that the Board include provision 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:

Copy of NJP
VA Claim (2pgs)
Character Reference Letters (3)
Letter for Admission to William Tyndale College
Letter from Applicant (3pgs)
Copy of Enlisted Performance Record
Copy of Report of Return of Deserter
Copy of Counseling/Warning Statement
Service Verification Certificate from Dept of Veterans Affairs     

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	870622 - 870624	COG

Period of Service Under Review:

Date of Enlistment:  870625		Date of Discharge:  890912

Length of Service (years, months, days):

	Active:    02  00  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.30 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  66 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

870701:	Retention Warning:  Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870723:	Retention Warning:  Advised of deficiency (4th Class Swimmer qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870924:	Determined physically not qualified for submarine duty by reason of Psych Not Qualified.

880629:	Retention Warning:  Advised of deficiency (Failure to go to appointed place of duty and willful disobedience of a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880629:	NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty at 0530, 880620, violation of UCMJ Article 91: Willful disobedience of a petty officer on 880617.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

880815:	Applicant declared a deserter on 880813 having been an unauthorized absentee since 0640, 880714 from USS MOUNT WHITNEY (LCC-20).

880921:	Applicant surrendered to military authorities on 880918 (1600) at NAS MEMPHIS MILLINGTON, TN.  Returned to military control 880918 (1600).  Retained onboard pending disposition instructions from parent command.

881008:	NJP for violation of UCMJ, Article 91: (3 Specs), 2 Specs, willful disobedience of a petty officer on 881005, 1 Spec, willful disobedience of a petty officer on 881006, violation of UCMJ Article 107: Make false official statement on 881006, violation of UCMJ Article 134: Communicate a threat on 881005.
	Award:  Forfeiture of $300.00 pay per month for 2 months, confinement on Bread & Water for 3 days.  No indication of appeal in the record.

881123:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, (3) Specifications
	Specifications 1 and 2:  Failed to go to appointed place of duty on 880703; Specification 3: Unauthorized absence from unit 880713 – 880918, [66days/S].  
	Findings:  to Charge I and specifications 1, 2 and 3 thereunder, guilty.
	Sentence:  Conf for 90 days, forfeiture of $447.00 pay per month for 3 months.
	CA 881220:  Sentence approved and ordered executed.  Judge advocate review was made on 881229, whereby findings were approved and sentence was determined to be lawful [Extracted from CO's message].

890205:	Retention Warning:  Advised any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for an administrative discharge.  All deficiencies previously cited and/or misconduct during your current enlistment, both prior to and subsequent to this action will be considered.  Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in an administrative separation under other than honorable conditions), notified of corrective actions, advised of consequences of further deficiencies, and issued discharge warning. 
	
890808:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense as evidenced by his service record.  [Extracted from CO's message].

890808:  	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 waive the minimum two working days to respond to the notice of administrative board procedures proposed action.  [Extracted from CO's message].

890816:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

890829:	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 890912 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 states:  “(Equity Issue) This former member opines that he was mistreated by his command and that this abuse contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service to full honorable.”  The applicant provided no documentation to support his allegations of mistreatment.  The Board determined the discharge was proper and equitable.  Relief is not warranted.

Issue 2 states:  “(Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”  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 any of these documents.  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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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