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

ex-BTFN, USN
Docket No. ND02-00540

Applicant’s Request

The application for discharge review, received 020314, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206.  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.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My first enlistment was completed without mishap and under honorable conditions.  I was granted a re-enlistment because of my dedication to my job as a Boiler Technician 3rd Class Petty Officer.

2.  I have attached three (3) copies of character reference letters from my supervisor and superior petty officers whom I served under while stationed at the Transient Personnel Unit in Philadelphia, PA during my second enlistment.  Character reference letters are attached as Document 1.

3.  I have attached copies of deans letters and school transcripts for achievements in earning an associates degree in business management and accounting at Pennsylvania Business Institute in 1994.  I am also currently attending Eastern College in pursuit of a bachelor's degree in organizational management.  All letters ant transcript are attached as Document 2.

4.  I have attached a personal reference from my supervisor (J_ F_) the regional manager of my last place of employment together with a recent copy of my résumé.  All resumé and personal reference are attached as Document 3.

Documentation

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

Copy of DD Form 214 (current enlistment)
Copy of DD Form 214 (previous enlistment)
Copy of character reference dated March 20, 1990
Copy of character reference dated March 20, 1990
Copy of character reference dated March 20, 1990
Letter from Pennsylvania Business Institute, SCI Director dated September 1, 1992
Letter from Pennsylvania Business Institute, Academic Dean dated November 12, 1992
Letter from Pennsylvania Business Institute, SCI Director dated November 12, 1992
Letter from Pennsylvania Business Institute, Registrar/SCI Director dated February 8, 1993
Letter from Pennsylvania Business Institute, Academic Dean dated February 8, 1993
Letter from Pennsylvania Business Institute, Registrar/SCI Director dated July 1, 1993
Letter from Pennsylvania Business Institute, Registrar/SCI Director dated October 7, 1993
Letter from Pennsylvania Business Institute, President dated May 23, 1994
Copy of student grade report (5 pages)
Copy of unofficial transcript
Character reference dated October 15, 2001
Copy of Applicant's résumé

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	850828 - 860102	COG
	Active:   USN			860103 - 890904	HON

Period of Service Under Review:

Date of Enlistment:  890905		Date of Discharge:  911125

Length of Service (years, months, days):

	Active:    02  02  21
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  1.00 (1)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, SSDR, MUC, NEM

Days of Unauthorized Absence:  411

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.  Discharged in absentia.

Chronological Listing of Significant Service Events:

890905:	Applicant reenlisted onboard USS COONTZ (DDG-40) for 4 years.

890921:	Applicant apprehended by Philadelphia Naval Base Police and turned over to Philadelphia City Police in conjunction with an incident in which Applicant allegedly fired one shot from a 12 gauge shotgun at the windshield of a pick-up truck driven by a CPO from USS KITTY HAWK.  Applicant was charged with illegal possession of a firearm, simple and aggravated assault.

900712:	NJP for violation of UCMJ, Article 111: Operating a passenger car while intoxicated, violation of UCMJ, Article 134: Drunk and disorderly.
	Award: Forfeiture of $481.05 per month for 2 months, reduction to BTFN.  No indication of appeal in the record.

901010:	Civil Conviction:  Commonwealth of PA, Department of Corrections for violation of aggravated assault.
Sentence: Jail for no less than 5 years and no more than 10 years.

901011:	Applicant to unauthorized absence 0745, 11Oct90.  Applicant apprehended by State Correctional Institution at Camp Hill, Camp Hill, PA and held on civil charges.  Applicant now serving a five to ten year sentence.

901109:	Applicant declared a deserter.

910227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to the commission of a serious offense.

910404:	Applicant advised of his rights certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Applicant wrote on the page "opportunity was not granted to consult with counsel.”  Applicant did not object to the separation.

910927:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a civil conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

911002:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to the commission of a serious offense.

911029:	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, in absentia, on 911126 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).

Issues 1 and 2.  The Applicant properly received an honorable characterization of service during his first enlistment.  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.  The Applicant’s second enlistment was marred by award of nonjudicial punishment (NJP) on one occasion and a civil conviction on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, falls short of that required for a higher characterization of service.  Despite the positive aspects of the Applicant’s record, an upgrade would be inappropriate.  Relief denied.

Issues 3 and 4.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service and certification of non-involvement with civil authorities, are examples of verifiable documentation 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.  Relief is 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 "afls14.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