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

ex-SR, USN
Docket No. ND02-01231

Applicant’s Request

The application for discharge review, received 20020828, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested to appear at a hearing at no expense to the Government before the Naval Discharge Review Board (NDRB) in the Washington National Capitol Region.  The Applicant listed American Legion as the representative on an addendum to the DD Form 293.  

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20030903.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service or the narrative reason for his discharge.  The Board’s vote was four to one 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: MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Character reference from J_ G_, dated September 1, 2003
Character reference from B_ T_, dated August 28, 2003
Character reference from T_ M_, dated August 26, 2003
Character reference from V_D_, dated August 29, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860826 - 861201	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  861202		Date of Discharge:  880205

Length of Service (years, months, days):

	Active:    01  02  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  21: (1) 870511; (20) 871228-880116 

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:

861218:	Drug/Alcohol Abuse Report (OPNAV 5350-2) indicates Applicant tested positive during a urinalysis screening into recruit training.  Applicant found not dependent; amenable to and eligible and recommended for Level I Treatment: Local Command Programs or NASAP/NDSAP.

870521:	NJP for violation of UCMJ Article 86: Unauthorized absence on 870511.
	Award:  Correctional Custody for 30 days (deferred until 870526).  No indication of appeal in the record.

870522:	Retention Warning:  Advised of deficiency (Unsatisfactory performance). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870820:	NJP for violation of UCMJ Article 134: Wrongfully sit down on his post (watch).
	Award:  Forfeiture of $50.00 pay per month for 1 month, extra duty for 9 days.  No indication of appeal in the record.

870917:	NJP for violation of UCMJ Article 86: Unauthorized absence from 0700 on 870906 to 2330 on 870907 (1 day/S); violation of UCMJ Article 117: Provoking words; violation of UCMJ Article 128: Assault.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

871104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of two serious offenses as evidenced by a violation of UCMJ Article 134, Wrongfully sitting down on post and by a violation of UCMJ Article 128, Assault.

871123:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27(b), elected the right to obtain copies of the documents used to support the basis for the separation, the right to an Administrative Board, the right to submit statements on own behalf either verbally or in writing before an administrative board or in writing if an administrative board is not convened, and the right to representation at the administrative board by qualified counsel.  All other rights waived.

880120:	NJP for violation of UCMJ Article 86: Unauthorized absence from 0100 on 871228 to 0450 on 880117 (20 days/S); violation of UCMJ Article 87: (2 Specifications) missing ship's movement on 880104 and 880111.
	Award:  Confinement on Bread & Water for 3 days.  No indication of appeal in the record.

880121:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of four serious offenses as evidenced by a violation of UCMJ Article 134, Wrongfully sitting down on post; a violation of UCMJ Article 128, Assault; and two violations of UCMJ Article 87, Missing ship's movement.

880125:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

880126:	Commanding Officer recommended to COMNAVMILPERSCOM WASHINGTON DC discharge under other than honorable conditions by reason of misconduct due to the commission of four serious offenses as evidenced by a violation of UCMJ Article 134, Wrongfully sitting down on post; a violation of UCMJ Article 128, Assault; and two violations of UCMJ Article 87, Missing ship's movement.

880129:	COMNAVMILPERSCOM WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

880205:	NJP for violation of UCMJ Article 112a: Wrongful use of THC on 880117; violation of UCMJ Article 91: Disrespectful in language toward a Senior Petty Officer on 880131.
	Award:  Confinement on Bread & Water for 3 days (suspended for 30 days).  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880205 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 contends that his post service conduct in the 15 years since his separation from military service, to include employment record, volunteer work, and non-involvement with civil authorities, warrants an upgrade to his characterization of discharge.  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.  The NDRB is authorized, however, to consider 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.  The Board was impressed with the Applicant’s contributions to his community.  The NDRB strongly encourages the Applicant to continue helping the youth in his community but does not consider these accomplishments to be of sufficient nature to exculpate his many non-judicial punishments awarded to him during his short enlistment.  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.  An upgrade to honorable conditions would be inappropriate.  Relief on this basis is denied.  For the Applicant’s edification, Sailors with similar service records normally receive a discharge characterization of under other than honorable conditions. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 134, Sentinel, lookout, offenses by; UCMJ Article 128, Assault; UCMJ Article 112a, Wrongful use of controlled substance; UCMJ Article 91, Insubordinate conduct; or UCMJ Article 87, Missing ship's movement if any of these offenses are 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