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

ex-AZ2, USN
Docket No. ND02-00347

Applicant’s Request

The application for discharge review, received 010806, but reopened on 020205, requested that the characterization of service on the discharge be changed to general/under Honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I would like the board to look at the rest of my record to see what type of sailor I was.

2.  I would like the Board to contact the 2 NIS Agent in my behalf.  
R_ L_, ---  ---  ----
G_ M_, ---  ---  ----. DSN:  --- ----

Submitted by DAV:

After review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, the FSM request to have his discharge upgraded from Other Than Honorable (OTH) to General Under Honorable Conditions.

As the FSM service organization, it is our contention that the OTH discharge awarded to the FSM is unjust due to the untimely persecution of the FSM.  While the FSM agrees that the action that led to the OTH discharge was negligent on his behalf, the discharge was unwarranted.

The FSM served in the United States Navy from 26 September 1989 to 14 August 1998 with Honorable service.  This statement is further supported by his receipt of the Navy & Marine Corps Achievement Medal, Navy Unit Commendation, Navy Meritorious Unit Commendation, Navy "E" Ribbon, Navy Good Conduct Medal (2), National Defense Service Record, Southwest Asia Service Medal (3), Sea Service Deployment Ribbon, Navy & Marine Corps Overseas Ribbon (3), Kuwait Liberation Medal and Letter of Commendation (Flag).  His Proficiency and Conduct marks were average to above average, with narratives of "highly qualified or highly recommended".  He attended several schools where he brought back and passed on the knowledge that he had acquired.  All indications show this was a highly motivated and dedicated sailor.

To support the FSM's claim of an unjust and inequitable discharge we must look at the facts of the case.  In 1995, while on tour in Italy the FSM, at a weak moment, sold his passport to an African National.  While being investigated for this crime, the FSM went undercover for the Naturalization and Immigration Service.  After working for them for a few months, all charges against the FSM were dropped.  The FSM was allowed to transfer to his next duty station.  In 1997, two years after the incident occurred, the FSM was brought up on charges by his new command for the passport incident.  At that time the FSM was instructed that he could either under go a Court Martial, which carried a ten year sentence or he could take an OTH discharge.  The FSM was married with two children, not thinking about the future consequences, the FSM agreed to take the OTH in order to not take the chance on being separated from his family for ten years.

It is this service organization's contention that the command persecuting the FSM had no jurisdiction in this matter.  There were no formal charges filed against the FSM, therefore there were no grounds for discharge.  This is a clear case of an unjust and inequitable act.  Therefore, we strongly encourage the board to upgrade the discharge from the current OTH to General Under Honorable Conditions.

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:

Copy of DD Form 214
Separation Authority (Commander, Naval Air Warfare Center Aircraft Div, Patuxent River, MD) ltr of Jul 30 1998
Military Medicine, Physical Exam Section, Naval Hospital memo of 6/19/98
Separation Without Orders (4 copies)
Service Record Pages (includes awards, performance eval, admin remarks, PCS orders, etc) (145+ pages - some duplication)

The following documents were submitted with a previous application, which was closed without action due to unavailability of discharge package.  These document brought forward with this application:

Character Reference ltr from Pastor J_ S_, Jr., dtd May 1, 1999
Character Reference undtd ltr from ATC(AW) J_ L. T_  (2 same letters)
Letter of Recommendation from AZC J_ W. T_, USN, DTD 29 June 1999
Character Reference undtd ltr from L_, H_, Veridian Engineering, Inc.
Character Reference ltr from S_ L. W_ dtd Apr 15, 1999
Character Reference ltr from S_ L_ F_-A_, dtd Apr 15, 1999
Character Reference ltr from B_ L. W_ dtd Apr 12, 1999
Character Reference ltr from L_ R. H_ dtd 4-14-1999
Character Reference ltr from K_ M. H_ dtd 4-9-99
Character Reference undtd ltr from J_ A. P_ 
Character Reference ltr from D_ B_ dtd Apr 13, 1999
Letter of Employment/Character Reference ltr from M_ Y. C_ dtd Apr 16, 1999
Statement of Character from AMSC(AW) A_ S_, USN, dtd May 8, 1999
Character Reference undtd ltr from AECS G_ B_, Maintenance Control SCPO

PART II - SUMMARY OF SERVICE

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

	Active:   USN			930426 - 960912	HON
					890926 - 930425	HON
	Inactive: USNR (DEP)	890911 - 890925	COG

Period of Service Under Review:

Date of Enlistment:  960913		Date of Discharge:  980814

Length of Service (years, months, days):

	Active:    01  11  02
	Inactive:  None

Age at Entry:  31			Years Contracted:  3

Education Level:  12			AFQT:  25

Highest Rate:  AZ2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  1.0 (1)		OTA:  2.71 (5.0 eval)

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MCAM, NUC, NMUC, Navy "" Ribbon, GCM(2), NDSM, SWASM(3), SSDR, N&MCOSSR(3), KLM, LoC(Flag)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

[ADMINISTRATIVE DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD BUT APPLICANT PROVIDED THE SEPARATION AUTHORITY.]

960913:	Reenlisted for 3 years at NSA Naples, Italy.

980619:	Medical Examination, Naval Hospital, NAS, Patuxent River, MD:  Applicant evaluated by medical officer and found fit for separation.

980730:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980814 under Other than Honorable conditions in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found the discharge was proper and equitable (D and E).

Issue 1:  The Applicant asserts that his performance while on active duty warrants an upgrade to his discharge.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as Honorable.  Under Other than Honorable conditions 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 his sale of his passport to a foreign national.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant committed a serious offense while serving on active duty.  The term "serious offense" should not be confused with what is considered serious in the civilian world.  The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses:  disrespectful language, failure to obey a lawful order or written regulation, drunken driving, forgery, fraud, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder.  Although all of these offenses come under the broad UCMJ category of "serious offense", some are clearly more heinous than others.  A person in the military must abide by the standards set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize.  Selling a U.S. Passport to a foreign national for any purpose is a "serious offenses" under the UCMJ.  The Applicant's Command considered this offense serious enough to warrant a trial by court-martial.
 
The Applicant’s Other than Honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  There was no evidence of impropriety, inequity or procedural irregularities in the Applicant’s discharge.  The Applicant’s elected to accept an Other than Honorable discharge in lieu of trial by court-martial.  The Applicant was afforded the appropriate due process at every opportunity.  The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant’s discharge to an Honorable characterization.  Relief denied.

Issue 2:  Each Applicant is responsible for collecting and providing evidence for the NDRB to review.  The NDRB is not responsible for contacting witnesses or collecting statements.  The Applicant's request for the NDRB to contact the two Naval Criminal Investigative Service Agents is denied.

The NDRB failed to see any "persecution" by the Applicant's former Command or the U.S. Navy.  The Command had sufficient jurisdiction to take the actions it did.  The Applicant's case was considered under the pertinent standards of equity and propriety.  The NDRB presumes regularity in the conduct of governmental affairs.  The Applicant failed to present any evidence to the contrary and his record was devoid of any factors sufficient to offset the seriousness of his offense.  Relief denied.  

The following is provided for the benefit of the Applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  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.  The NDRB failed to find sufficient evidence to warrant an upgrade based on any post-service accomplishments.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 18, effective 
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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