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

 ex-BTFA, USN
Docket No. ND02-01160

Applicant’s Request

The application for discharge review, received 020801, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Nashville, TN.  The Applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area. 

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030520.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERS-MAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue)  This former member requests that the Board apply provisions of SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Social Security Statement prepared for Applicant dated 021211
Character Reference from Vanderbilt University Department of Preventative Medicine
Letter of Recommendation from C_ O_ dated 030515
Letter of Recommendation from O_ M. K_ dated 030514
Letter of Recommendation from the Law Office of W_ D. M_ dated 020917
Letter from State of Tennessee Dept of Veterans Affairs Claims Division dated 020828
Invitation from Anioma Association USA dated 030503
Letter of Invitation from United Sierra Leoneans of Nashville dated 020315
Character Reference from S_ S_, Hickory Bend United Methodist Church dated
    030513
Arrest Record, Metropolitan Nashville Police Department dated 030718
Organizational Chart from TIMCO LLC as of May 2002
Proof of Employment from TIMCO LLC dated 020710
Letter of Termination from USCO Logistics dated 010501
Letter of Termination from TIMCO LLC undated
Certification Letter for Teaching from the United Methodist Church, Sierra Leone
    Conference, Department of General Education dated 850515
Employee Orientation from Thomas Nelson, Inc., Nashville Distribution Center
    dated 020912
Applicant Flow Data, Aerostructures Corp., Nashville dated 020725
Pre-employment Orientation Form from FedEx Ground for 020913 session
Disqualification for Employment from U.S. Postal Service dated 970707
Character Reference (e-mail) from G_ C_, Gaylord Opryland Resort & Convention
    Center dated 030513
Letter of Recommendation from USCO Logistics dated 010821
Associate of Applied Science from Nashville State Technical Institute dated 011215
Scholarship Information from Tennessee Technical University dated 011126
Acceptance Letter from Tennessee Technical University dated 030509
Notice of Action from INS for Petition for Fiancé
Letter from Dr. T_ S_ (2 pages)
Reference Letter from L_ S_, Sport Director of YMCA

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890221 - 890327	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890328		Date of Discharge:  920128

Length of Service (years, months, days):

	Active:    02  10  01
	Inactive:  None

Age at Entry:  31			Years Contracted:  4 

Education Level:  12			AFQT:  27

Highest Rate:  BTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.40 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS GENERAL/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900628:	NJP for violation of UCMJ Article 86: Unauthorized absence from 2000 on 900604 to 0645 on 900605; violation of UCMJ Article 92: Disrespect-ful to a Senior Chief Petty Officer on 900605.
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

900816:	NJP for violation of UCMJ Article 92: Wrongful possession of a dangerous weapon on 900808.
	Award:  Restriction and extra duty for 30 days (suspended for 6 months).  No indication of appeal in the record.

910816:	NJP for violation of UCMJ Article 86: (2 Specifications): Unauthorized absence from 1100 to 1400 on 910730, Unauthorized absence from 910812 to 910813 (1 day/S); violation of UCMJ Article 91: Disrespectful in language toward a Petty Officer on 910807; violation of UCMJ Article 92: Failure to obey a lawful order on 910807.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 15 days, reduction to E-2.  No indication of appeal in the record.

910826:	Applicant acknowledged reviewing his Enlisted Performance Evaluation Report for the period 910201 to 910816, which contained derogatory comments.  Applicant refused to sign his evaluation and indicated that he desired to make a statement.  Applicant was told he had 10 days to write a statement.
 
910909:	NJP for violation of UCMJ Article 86: Absence from appointed place of duty, to wit: Restriction men's muster.
	Award:  Restriction and extra duty for 15 days (suspended for 30 days).  No indication of appeal in the record.

910910:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his enlisted service record.

910910:	Applicant advised of his rights [Statement of Awareness and Request for, or Waiver of, Rights does not indicate if Applicant consulted with counsel certified under UCMJ Article 27(b)] and objected to administrative dis-charge.  Applicant elected the right to obtain copies of documents supporting the basis of his separation, the right to appear before an Administrative Discharge Board, the right to submit statements on his own behalf, and the right to representation by qualified counsel; all other rights waived.

911015:	Message to BUPERS: Temporary orders for Applicant to transfer to TRANSPERSU, Naval Station, Norfolk, VA for disciplinary action.
 
911015:	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 recommend-ed discharge under honorable conditions (general).

911114:	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: "[Applicant] has been on board this command twenty-one months, and on active duty for thirty months.  During his period on board, he has made four Mast appearances in less than two years.  The Mast convictions are for numerous serious crimes, many of which involve flagrant disregard of orders and disrespect-ful conduct toward his superiors.  With an AFQT of 42, [Applicant] has innate intelligence which should have ensured his success.  However, because he is totally unwilling to adhere to the rules and regulation of the Navy and he refuses to recognize authority, he is unsuitable for further Naval service." 

911216:	BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

920127:	Applicant indicated in writing his desire to submit a statement in response to his Enlisted Performance Evaluation Report for the period 910201 to 910816.  Applicant did not submit a statement within the allotted time nor did he request an extension.
  
931214:	NDRB documentary record review Docket Number ND92-01531 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920128 under honorable conditions (general) 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 contends, through counsel, that his post-service conduct, to include continuing education, employment, and community involvement, warrants reconsideration of his characterization of service.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, may be considered.  The Board did consider the post-service documenta-tion provided by the Applicant as well as the additional post-service accomplishments revealed during his testimony and does acknowledge the Applicant's positive accomplishments and service to his community.  However, the evidence provided by the Applicant to the Board was deemed insufficient to warrant a recharacterization of his discharge to honorable.  Relief on the basis of post-service conduct is therefore denied.

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice Article 91, Insubordination or UCMJ Article 92, Failure to obey order or regulation if adjudged at a Special or General Court-Martial.

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