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

 ex-SA, USN
Docket No. ND02-01023

Applicant’s Request

The application for discharge review, received 020711, requested that the characterization of service on the discharge be changed to honorable.  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 030331.  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.  The issue of my Administrative burden of conduct mainly resolve around the issues of my Family.  My ex-wife to date, K_ D_ of maiden name.  We had our first child born in Oct-6-1990, K_ M_, one issue of VA a rose from his birth on Oct-9-1990.  My wife & son had no utilities such as beds, furniture, ect it was late being shipped from Tennessee to Norfolk, VA.  The incident of missing ships movement was pressured upon me by my pregnant wife at this time.  Son J_ M_.  She stated to me she wanted me out of the Navy, or we would divorce.  I was gone for 11 months to Desert Storm.  She wanted me with our 2 children.  So I missed ship movement. Since I was already a medical burden obesity, to Navy standards I'm 6'4 295 I did pass all pt test but was automatically rejected to body fat 27% of cutbacks done.  I now work in Law enforcement, I'm a sergeant in corrections.  If it pleases the review board I'm asking to change of Honorable.  For my future of Certified Law enforcement is pending on this thank you.

Documentation

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

Copy of DD Form 214
Administrative Remarks (Failed Physical Readiness Standards due to obesity) dated February 1, 1992
Administrative Remarks (Failed Physical Readiness Standards due to obesity) dated August 1, 1991
Letter from National Personnel Record Center (2 pages) dated June 6, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900224 - 900401	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900402		Date of Discharge:  920819

Length of Service (years, months, days):

	Active:    02  03  11
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  25

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.86 (3)	Behavior:  3.00 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, KLM, SASM(w2b*), SSDR

Days of Unauthorized Absence:  47

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:

910822:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86: UA from unit, to wit: USS IWO JIMA (LPH-2)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910823:	NJP for violation of UCMJ, Article 86: UA (3 specifications); Specification 1: UA from unit, to wit: USS IWO JIMA from 910722 to 910731 (9 days); Specification 2: UA from USS IWO JIMA from 910802 to 910818 (17 days/S); Specifications 3: UA from USS IWO JIMA from 910820 to 910821 (1 day).
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

920710:	NJP for violation of UCMJ, Article 86: UA from unit from 920526 to 920615 (20 days/S); violation of UCMJ, Article 87: Missed ship's movement on 920527.
	Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

920710:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from CO's message dated 920713.]

920710:	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. [Extracted from CO's message dated 920713.]
.
920713:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920731	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 920819 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.  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 service was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry 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, and falls short of that required for an honorable characterization of service. While he may feel that his family responsibilities 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.  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.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance career opportunities, or for 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 "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