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

ex-SA, USN
Docket No. ND02-00815

Applicant’s Request

The application for discharge review, received 020517, requested that the characterization of service on the discharge be changed to honorable or 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 030221.  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

1.  To whom it may concern:

Hello my name is W_ B_, I was enlisted in the U.S. Navy for 2 1/2 years.  I was discharged Jan 16, 2001.  I am ask for an upgraded so I can better my life for my kids.  I was discharged for misconduct.  The reason for my misconduct was the result of a STD test.  The result was I found out I have the HIV virus.  At the time I wasn't in my right mind, and I did things that I wouldn't do.  I haven't seen a doctor since my discharge.  I'm not asking for a hand out, all I'm asking for is a chance to get a better job to treat my illness.

Documentation

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

Copy of DD Form 214
Copy of Medical Holding Company Admission Work Sheet, dated March 14, 2001
Copy of Doctor's Orders, March 14, 2001
Copy of Admission to Medical Holding Company, 
Copy of Medical Personal Data Registration Form
Copies of Evaluation Report & Counseling Record (3 pages)  

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980812 - 980916	COG
	Active:   USN 		None

Period of Service Under Review:

Date of Enlistment:  980917		Date of Discharge:  010623

Length of Service (years, months, days):

	Active:    02  08  00
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)	Behavior:  2.66 (3)		OTA:  3.11 (5.0 Evals) (Extracted from case file)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NM

Days of Unauthorized Absence:  36

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:

980918	Applicant negative for HIV-1 Antibody test.  

980923	Applicant tested Positive for STD Chlamydia.  Applicant received appropriate medical treatment while in basic training.

990106	Applicant reported on board USS ENTERPRISE (CVN 65).

990827:	To UA.

990830:	From UA (3 days/S). 

990910:	To UA.

990913:	From UA (3 days/S). 

000810:	NJP for violation of UCMJ, Article 86: Unauthorized absence 000620 to 000625 (6 days/Apprehended by Portsmouth Police Department).  Returned to USS Enterprise.
	Award:  Forfeiture of $200.00 pay for 1 month, restriction for 6 days (2 days suspended).  No indication of appeal in the record.

000913:	Punishment of 2 days restriction suspended at CO's NJP held 000810 vacated this date due to continued misconduct.

000913:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 000820 to 000821 (1 day).
	Award:  Forfeiture of $200.00 pay for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

001121	Applicant declared a deserter having been an unauthorized absentee since 0600, 2 NOV 00.

001126	Applicant surrendered on board USS ENTERPRISE.

001207:	NJP for violation of UCMJ, Article 86: (1) Unauthorized absence from 001102 to 001111 (9 days); (2) Unauthorized absence from 001112 to 001126 (14 days/S) violation of UCMJ, Article 87: Missed Ship's Movement.
	Award:  Forfeiture of $667.00 for 2 months (1 month suspended), restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

001215:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001215:  	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.

010109	Separation Physical.  Applicant states he is in good health and taking no medications.

010111	Separation Physical.  Applicant found qualified for separation.

010314	Applicant admitted to Medical Holding Unit, Naval Medical Center, Portsmouth, for medical evaluation for Dx: 279.3 (Unspecified immunity deficiency).
(Extracted from case file)

010518:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010609:	COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010623	Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 010623 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:  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Board cannot grant relief for the purpose of improving employment opportunities as requested by the Applicant.  Relief denied.

The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor.  The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct, which resulted in award of non-judicial punishment on three occasions for violations of the UCMJ.  While the Applicant was diagnosed and treated for the sexually transmitted disease, chlamydia, in basic training, there is no evidence that he ever tested positive for HIV.  The documentation provided by the Applicant indicates he was admitted for evaluation for an unspecified immunity deficiency.  There is no evidence in the official record nor did the Applicant provide any documentation of conclusive test results or a positive diagnosis to support his claim that he has “ the HIV virus.”  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.  A discharge upgrade to honorable or under honorable conditions would be inappropriate.  Relief denied.

The following is provided for the Applicant’s information:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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 "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