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

 ex-AT2, USN
Docket No. ND02-00224

Applicant’s Request

The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  A reduction in rate should never have occured.  Would like to be re-instated to E-6.
Discharge to be upgraded to Honorable. 60 Days of leave was never paid out upon discharge.  I was not given the opportunity to take the leave. Wish to be eligible for and receive my pension.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 8/19/2002 and the following comments are hereby submitted:  We do concur with the applicant's contention that his discharge be upgraded to Honorable & that he be re-instated to E-6.  He was awarded two good conduct medals, the Southwest Asia Service Medal and the Meritorious Commendation Medal.  He has almost 20 years of service to his country.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for upgrading the applicant's discharge to Honorable.

Documentation

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

Job/character reference from District Manager, undated
Job/character reference from Manager of Refinery Systems dated August 22, 2000
Professional reference from Consultant Manager, undated
Job/character reference from Consultant Manager, dated November 30, 2000
Applicant's DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	770428 - 770524	COG
	Active:   USNR		770525 - 780201	RELADTRA
	Inactive: USNR		780202 - 790814	HON
	Active:   USN			790815 - 801113	HON
	Active:   USN			801114 - 860213	HON
	Active:   USN			860214 - 920209	HON

Period of Service Under Review:

Date of Enlistment:  920210		Date of Discharge:  961112

Length of Service (years, months, days):

	Active:    04  09  03
	Inactive:  None

Age at Entry:  33			Years Contracted:  6

Education Level:  12			AFQT:  86

Highest Rate:  AT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (6)	Behavior:  3.68 (6)		OTA:  3.91
Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), SASM, SSDR (3), MUC (2), NDSM, AFEM, NAM, NER, AFSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

920210:	Applicant reenlisted for 6 years.

951215:	NJP for violation of UCMJ, Article 92: Violate a lawful order on 29 Nov 95 to 9 Dec 95, to wit: involving himself in an improper relationship with another member of VA-75.
	Award:  Oral admonition, reduction to AT2.  Reduction suspended for 6 months.  No indication of appeal in the record.

960206:	NJP for violation of UCMJ, Article 107: False official statement; violation of UCMJ, Article 134: Wearing unauthorized device.
	Award: Reduction to AT2.  No indication of appeal in the record.

960611:	Lawful order issued to applicant concerning improper personal relationship, advised of consequences of further deficiencies.

960717:	Civil Conviction:  Circuit Court of the City of Virginia Beach for violation of burglary and grand larceny between 1 Feb 96 through 29 Feb 96.
Sentence: Jail for 2 years for each charge.  Sentence is suspended, conditional upon good behavior for four years, having no contact with victim, making restitution to victim in the amount of $9,000.00 through the victim-witness office and court costs of $137.00.  Restitution to be paid at the rate of $500.00 per month beginning August 1, 1996.

960722:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civil conviction as evidenced by service record entries.

960813:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960829:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and was the subject of a civil conviction, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

960923:	Commanding Officer, Transient Personnel Unit, Norfolk recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civil conviction.

961003:	BUPERS directed the applicant's discharge under honorable conditions (general) 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 961112 under honorable conditions (general) for misconduct due to the 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).

Issues 1 and 2.  The applicant’s issues are without merit.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions, a civil conviction, and adverse counseling entries on other occasions.  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 honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

The Board has no authority to reinstate rank, award pensions or rectify pay and leave discrepancies.  Relief is therefore 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.  Relief not warranted.

The applicant 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.  Representation at a personal appearance hearing is recommended but not required.    

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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