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

ex-SR, USN
Docket No. ND02-00979

Applicant’s Request

The application for discharge review, received 020701, 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 Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030319.  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.  To whom it may concern,

This is the way I remember the incidents that lead up to my Captains Mast.  I had not been able to run over 1 mile since getting shine splits from my Boon Dockers in Basic Training, so I was on the workout program with the rest of the people that either were over weight or didn't pass the fitness test.  I watched my Chief login and logout without ever working out and after 2 months of this I decided to follow in his practices.  After about 2 or 3 weeks my Chief asked me about my workouts and I remember saying that I worked out as much as he did.  A week or so later he told me that he was writing me up for not working out, and then told me he got me logging in twice that week without working out and asked if I wanted to deny it.  I agreed that is what had happened and told him that I was just doing what I saw him do for months.  The next thing about this incident I remember was being told by my Captain that he was requesting that I be discharged for falsifying a document, and that I was to continue with my normal duties until that happened.  I look back at that time now and wish that I done things differently but also don't think that a first offense like this one should have brought on such sever punishment and an Other than Honorable Discharge.  This is why I am requesting that my discharge be changed to a General Discharge.

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.

The Applicant was a good performing submarine sailor for almost 2 years.  He was given a other than honorable discharge for his first offense for misconduct charge.  Not that we condone his conduct but we feel that his punishment was not equitable under the guidelines of SECNAV Instruction 5420.174C par 9.3A(b).  "At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the Applicant was a member" we concur with him that a first offense like this one should not have brought on such severe punishment.

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:

Applicant's DD Form 214
Character reference, dated May 16, 2002
Employment reference, dated June 4, 2002
Employment reference, dated May 15, 2002
Character reference, dated May 20, 2002
Applicant's resumé
Police record check, dated May 14, 2002
Letter from National Personnel Records Center, dated May 8, 2002
Seventeen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901113 - 910106	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910107		Date of Discharge:  930218

Length of Service (years, months, days):

	Active:    02  01  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (2)	Behavior:  2.30 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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:

911115:	Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

920124:	Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

920208:	Counseling:  Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

920806:	Counseling:  Advised of deficiency (performance, personal behavior, and responsibilities), notified of corrective actions and assistance available.

920815:	Counseling:  Advised of deficiency (responsibilities), notified of corrective actions and assistance available.

920825:	Counseling:  Advised of deficiency (performance), notified of corrective actions and assistance available.

920923:	NJP for violation of UCMJ, Article 92: Dereliction of duty, to wit: failed to workout three times a week during the week of 920831, violation of UCMJ, Article 107: False official statement on 920906.
	Award: Extra duty for 30 days, reduction to SR.  No indication of appeal in the record.

921002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921112:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921218:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930115:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [Seaman Recruit A_’s (Applicant’s) performance has been characterized by immaturity and a lack of responsibility and integrity.  An administrative board was held to determine if Seaman Recruit A_ (Applicant) had any potential for future Naval Service.  I concur with the Board’s findings that Seaman Recruit A_ (Applicant) shows no potential for future Naval Service and a separation with an Other than Honorable Discharge is recommended.]

930204:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Note:  Discrepancy found in the official record.  The Administrative Discharge Board refers to two NJP's 31 August 1992 and 6 September 1992.  The Applicant’s service record indicates one NJP dated 23 September 1992 with the offense dates of 31 August 1992 and 6 September 1992.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930218 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).

Issue 1:  The Applicant believes that his discharge is inequitable.  He has requested that his characterization of service be upgraded to honorable.  The Applicant’s summary of service is marred by numerous counseling entries for deficiencies in his performance, personal behavior and responsibilities.  Additionally, he was awarded non-judicial punishment (NJP).  The Applicant did not appeal his NJP.  After being advised of his rights the Applicant consulted with legal counsel and elected to appear before an Administrative Discharge Board.  The Board found that the Applicant had committed a serious offense (making a false official statement), his misconduct warranted separation and recommended he be discharged under other than honorable conditions.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected from a Sailor.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The Applicant’s conduct, which forms the primary basis for determining the character of his 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.  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 to honorable would be inappropriate.  Relief denied.

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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  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 regulation does not clearly define this authority, but in fairness to those who have served honorably, the Board is very judicious in its application of this authority.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s evidence of post service accomplishments was insufficient to mitigate the misconduct for which he was discharged.  An upgrade to reflect honorable service would be inappropriate.  Relief denied.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at 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