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

ex-MAC, USN
Docket No. ND02-00133

Applicant’s Request

The application for discharge review, received 011022, requested that the characterization of service on the discharge be changed to honorable.  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 020701.  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, as submitted

1.  My Undesirable Discharge was inequitable because it was based on one isolated incident in 13 years of service with no other adverse action.  Even the C.O. states in my fitness report "continued service in the master-at-arms rating, not Navy??

2.  My Undesirable Discharge when quickly after my military lawyer informed my command, I was hiring a civilian attorney.

3.  Why was I informed by LTJG M_ (PERS-83) the reason my first board was in question, was because errors with my rights??

4.  Why was I transferred to Pensacola until the command found out that Pensacola could board me out of the Navy?

5.  If I was such a bad person it was real funny how I was still in a leadership role at NAS Pascagoula, "Weapons" dept for 9 months??

6.  Because of my discussion with my military lawyer to hire a civilian attorney, a message was sent.  Why couldn't the system waited 23 more days and let me exit the Navy on my release date of 5 Jun 99??

7.  Why can't I be transferred to the IRR???

- I feel this was easy way out for the Navy!!
- If the homosexuality acts really where proven at the Board, what happen??

- I really that the Navy didn't want to help me at all after my hard 13 yrs of service, I gave my life to them, just look at my past record, I know I achived just a little more than other's wanted!!

- I feel the system I've seen work in the past for others is now broke!  That's why we are hurting each other!!  I love the Navy for all good people I have met and this time I ask the system to work with me??  Money is not the issue here, "It is pride & honor"?

Thank you,

Documentation

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

Copy of Fitness Report and Counseling Record
Copy of e-mail dated March 18, 1999
Copy of e-mail dated April 1, 1999
Copy of e-mail dated April 1, 1999
Copy of e-mail dated April 1, 1999
Copy of e-mail dated April 1, 1999
Copy of e-mail dated April 1, 1999
Copy of e-mail dated April 14, 1999
Copy of e-mail dated April 14, 1999
Copy of standard transfer order dated August 14, 1998
Copy of history of assignments
Copy of message from NAS Pensacola, FL dated August 21, 1998
Copy of press release
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	850724 - 850812	COG
	Active:   USN 			850813 - 890622	HON
		   USN			890623 - 920615	HON
		   USN			920616 - 950425	HON
		   USN			950426 - 970605	HON

Period of Service Under Review:

Date of Enlistment:  970606		Date of Discharge:  990512

Length of Service (years, months, days):

	Active:    01  11  07
	Inactive:  None

Age at Entry:  30			Years Contracted:  2

Education Level:  12			AFQT:  27

Highest Rate:  MAC

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM (2), MUC (3), CGOSR (2), GCM (3), AFEM, SSDR, OSR (3), NDSM, BER, JMUC, HSM, ESWS

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:

980813:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, to wit: Article 1165, U.S. Navy regulations, by wrongfully violating established policy on fraternization, violation of UCMJ, Article 134: General Article, with the following specifications: (1) Disorderly conduct, drunkenness, (2) Indecent acts with another.
	Award: Forfeiture of $1069 per month for 1 month.  Appealed 980818. Appeal denied 981120.

980917:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to homosexual conduct and by reason of misconduct due to the commission of a serious offense.

980917:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990108:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed homosexual misconduct and commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions for reason of homosexual misconduct and by a unanimous vote recommended discharge under other than honorable conditions for reason of misconduct due to commission of a serious offense.

990212:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to homosexual conduct and misconduct and by reason of misconduct due to the commission of a serious offense.

990413:	CNPC 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 990512 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 applicant states, his discharge was based on one isolated incident in thirteen years of documented outstanding service with no other infractions.  The applicant committed a serious offense that warranted processing for separation, normally under other than honorable conditions.  The Board found that the applicant’s prior accomplishments did not mitigate his misconduct.  The discharge was proper and equitable.  Relief denied.

Issues 2, 3, 4, 6, and 7.  The applicant infers that his discharge proceedings were unjust.  The Board reviewed all documentation contained in the official record and that provided by the applicant and found no impropriety or inequity in the applicant’s processing for administrative separation.  The Board discerned no injustice based on the convening date or denial of due exercise of his rights concerning his administrative board, date of transfer to shore duty, or date of discharge.  There was no injustice in the fact the applicant was involuntarily separated 23 days short of his EAS under other than honorable conditions due to misconduct.  Relief denied.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor.   The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion.  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 that regulate good order and discipline in naval service.  Members are normally transferred to the IRR upon completion of their current contract.  Members who are involuntary separated for misconduct are normally considered an obstacle to activation during a future mobilization and are therefore not transferred to the IRR.  Relief denied.

Issue 5.  The Board found the applicant was separated for misconduct, not for being a “bad person”, and that his assignment to a billet that entailed exercising leadership of subordinates while awaiting administrative separation does not constitute an impropriety or inequity.  Relief denied.

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.  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 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