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

 ex-SR, USN
Docket No. ND01-01112

Applicant’s Request

The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed.  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 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.  At the time of offenses committed I had been drinking and the offenses would not have been committed had I not been drinking.

2.  I have maintained a clean and sober civilian life since the navy.

Documentation

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

Copy of DD Form 214
Copies from Service Record (15pgs)
Copy of Certificate of Completion (42-day Inpatient Program)
Copy of Criminal History Record Check Request (2pgs)
Discharge Request Letter
Letter from Applicant
Reference Letter from Rescue Mission New Beginnings Team Leader M__ H. O____
Reference Letter from Rescue Mission Executive Team Leader M___ L. C____

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	900320 - 900710	COG

Period of Service Under Review:

Date of Enlistment:  900711		Date of Discharge:  921110

Length of Service (years, months, days):

	Active:    02  04  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  29

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  2.70 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASMw2b*, KLM, NUC, CAR, CGSOR 

Days of Unauthorized Absence:  None 

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:

920207:	NJP for violation of UCMJ, Article 89: (2 Specs), Disrespect toward a Superior Commissioned Officer by threatening bodily harm to him; violation of UCMJ, Article 91: Disrespect toward a Chief Petty Officer, violation of UCMJ, Article 92: Violation of a lawful general regulation; to wit  SECNAVISNT 1700.1C (Alcohol Beverage Control) dtd 860721 by wrongfully consuming alcoholic beverages while under the Hawaii drinking age limit; violation of UCMJ Article 117: (2 Specs), Provoking speeches, violation of UCMJ Article 108: Destruction of government property.
	Award:  Forfeiture of $422.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

920210:	Retention Warning:  Advised of deficiency (CO's NJP of 920207 for violation of Article 91 with 2 Specifications- Disrespect toward a Superior Commissioned Officer and Disrespect toward a Chief Petty Officer; CO's NJP of 920207 for violation of Article 117 with 2 Specifications - Provoking Speeches; CO's NJP of 920207 for violation of Article 92: violation of a general regulation; CO's NJP of 920207 for violation of Article 108: Destruction of government property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920928:	NJP for violation of UCMJ, Article 134: Wrongfully commit an indecent act with SN W____ A S___ by performing fellatio on SN S____ on or about 0535, 920826.
	Award:  Forfeiture of 392.00 pay per month for 1 month, reduction to E-1.  No indication of appeal in the record.

921008:	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 disrespect toward a commissioned officer, disrespect toward a chief petty officer, violation of a lawful general regulation and homosexuality due to member engaging in homosexual acts under BUPERSMAN Article 3630600 and 3630400.

921008:  	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.

921026:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by disrespect toward a commissioned officer, disrespect toward a chief petty officer, violation of a lawful general regulation and homosexuality due to member engaging in homosexual acts under BUPERSMAN Article 3630600 and 3630400.

921103:	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 921110 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:  “At the time of offenses committed I had been drinking and the offenses would not have been committed had I not been drinking.”  The applicant was guilty at NJP on two separate occasions for violation of the UCMJ.  His misconduct included violation of Articles 89 (disrespect towards a superior commissioned officer), 91 (disrespect towards a Chief Petty Officer), 92 (violation of a general lawful order), 117 (provoking speech), 108 (destruction of government property), and 134 (wrongfully committing an indecent act).  The fact that the applicant may have been drinking prior to committing the misconduct is irrelevant.  The applicant was held accountable for his actions.  The applicant failed to provide any evidence to show that an error occurred during the discharge process or that characterization assigned was inequitable.  Relief based on this issue is denied.

Issue 2 states:  “I have maintained a clean and sober civilian life since the Navy.”  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 15560C), effective 15 Aug 91 until 
04 Mar 93, 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