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

ex-ETSR, USN
Docket No. ND02-01198

Applicant’s Request

The application for discharge review, received 020820, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance discharge review before a traveling panel closest to (left blank).  The Applicant listed the 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, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member avers that his characterization of service is too harsh because it has caused him to lose entitlement to the MGIB educational benefits.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940627		Date of Discharge:  970806

Length of Service (years, months, days):

	Active:    03  01  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rate:  ETSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.75 (4)		Behavior:  2.50 (4)		OTA:  2.74

Military Decorations:  None

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

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

950602:	Retention Warning: Advised of deficiency (Violation UCMJ, Article 86: Unauthorized absence from organization), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950607:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 950522.
	Award: Forfeiture of $223 per month for 1 month, restriction and extra duty for 7 days, reduction to SR.  No indication of appeal in the record.  [Court memorandum does not reflect rate adjustment, nor does it show reduction suspended.]

950912:	Vacate reduction to SR awarded at CO's NJP dated 950607 due to continued misconduct.

950912:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 950831.
	Award: Forfeiture of $223 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

950912:	Retention Warning:  Advised of deficiency (Violation UCMJ, Article 86: Unauthorized absence from organization), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970707:	NJP for violation of UCMJ, Article 86 (5 specs): (1) Failure to go at 1215, 970618, (2) Failure to go at 0730, 970619, (3) Failure to go at 0800, 970619, (4) Failure to go at 1315, 970621, (5) Failure to go at 0730, 970623, violation of UCMJ, Article 90: Disobey a lawful order from a commissioned officer on 970619.
	Award: Forfeiture of $505 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSA.  No indication of appeal in the record.

970710:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.

970710:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970723:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Failure to go at 0800, 970713, (2) Failure to go 0700, 970714, (3) Failure to go to 1835, 97016, violation of UCMJ, Article 92: Disrespectful to a chief petty officer.
	Award: Forfeiture of $450 per month for 2 months, confinement on bread and water for 3 days, reduction to ETSR.  No indication of appeal in the record.

970724:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.

970731:	Commander, Cruiser Destroyer Group 5 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 970806 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 four occasions and adverse counseling entries on other occasions.  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.  An upgrade would be inappropriate.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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, to enable possible eligibility for veteran’s benefits, or for 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, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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