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

 ex-SR, USNR
Docket No. ND02-00327

Applicant’s Request

The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022.  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, as submitted

1.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his General (Under Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) entered the Navy Military Service on April 11, 1991 until August 19 1991 a period of only (3) months and 28 days.  During this Boot Camp Training Period the (FSM) committed several Non-Judicial Punishments infractions, as well as the subsequent charge for violation of UCMJ Article 128 for assault on a fellow recruit during his training period and added to his other NJP offenses.
The (FSM) desires now to have his General (Under Honorable) Discharge up-graded to an Honorable Discharge from the United States Naval Authorities.

The (FSM) past behaviors he exhibited and short term of service that lead to his discharge he now feels he can be personally held responsible for and he realizes that he alone attributed to his immature behaviors and inability to handle the stressful military life in boot camp that lead him to act out in inappropriate ways.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his General (Under Honorable Conditions) Discharge to an Honorable Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and citing the reasons for his violations of his past military Naval Service Rules and policy during boot camp training and his subsequent dismissal from the US Naval Services is the new start for him.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment.

We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Naval Services.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Documentation

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

Applicant's DD Form 214
Twenty-one pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910411		Date of Discharge:  910819

Length of Service (years, months, days):

	Active:    00  03  28
	Inactive:  00  00  10

Age at Entry:  24			Years Contracted:  8

Education Level:  11 GED		AFQT:  55

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Available for review

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:

910422:	Applicant ordered to active duty.

910423:	Applicant retained in the Naval service, despite his defective enlistment and induction due to fraudulent entry into naval service as evidenced by his failure to disclose pre-service civil involvement/drug abuse.  This decision is based on the information provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and he could be subject to other judicial or administrative proceedings.  1/91 eluding Trolley fare, San Diego, CA, fine unknown, unpaid.  Applicant hereby directed to resolve the outstanding debts to society as listed above within 4 months.  Failure to resolve the above listed involvements with civil authorities may result in disciplinary action being taken IAW the Uniform Code of Military Justice.

910517:	Retention Warning: Advised of deficiency (violation of UCMJ, Navy rules and regulations, demotivated, negative attitude, improper conduct/behavior, showing signs of behavior indicative of non-conformity to standards set at recruit training (lack of effort)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910523:	NJP for violation of UCMJ, Article 128: Assault SR on 0630, 21May91, by striking the right side of face with a notebook.
	Award: Forfeiture of $348.60 per month for 1 month.  No indication of appeal in the record.

910523:	Retention Warning: Advised of deficiency (assault and provoking speech or gestures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910530:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order on 1400, 24May91, to wit: sleeping at the centerboard during the hours of training, violation of UCMJ, Article 117: Wrongfully use provoking words, towards SR.
	Award: Forfeiture of $348 per month for 2 months.  No indication of appeal in the record.

910530:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910530:	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 obtain copies of the documents used to support the basis for the separation.

910531:	Commanding Officer, Recruit Training Command, San Diego, CA recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910625:	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 910819 under other than honorable conditions 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).

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  Despite his short length of service, the Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for serious offenses 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.  While he may feel that his immaturity and inability to handle stress were factors that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade would be inappropriate.   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.  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), 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