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

   ex-SR, USN
Docket No. ND02-01265

Applicant’s Request

The application for discharge review, received 20020906, requested that the characterization of service on the discharge be changed to General Under Honorable Conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812.  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.  (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:

Certificate of completion, dated March 15, 1997
Certificate of appointment, dated June 30, 1997
Applicant’s DD Form 214
Certified Food Service Manager, dated March 13, 1997
Equivalency Diploma, dated March 26, 1994

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890520 - 890523	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890524		Date of Discharge:  920228

Length of Service (years, months, days):

	Active:    02  09  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10 GED		AFQT:  65

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (4)	Behavior:  3.10 (4)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, ESD-SD, SSDR

Days of Unauthorized Absence:  6

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:

910212:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty 0900-1030, 910119, violation of UCMJ, Article 92: Dereliction in the performance of duties on 910119.
	Award: Forfeiture of $50 per month for 2 months, oral reprimand.  No indication of appeal in the record.

911223:	NJP for violation of UCMJ, Article 86 (5 specs): (1) Unauthorized absence 0545-0700, 911207, (2) Unauthorized absence 0545-1200, 911211, (3) 0545-0645, 911214, (4) 0545-0630, 911215, (5) 0545, 911216 to 2245, 911220 (4 days/apprehended), violation of UCMJ, Article 92 (2 specs): (1) Failure to obey order from MMCS(SS) on 911219, (2) Failure to obey order from Lt to quit his second job at “Lovely Ladies” on 911210.
	Award: Forfeiture of $50 per month for 2 months, restriction for 45 days, reduction to SA.  Restriction suspended for 6 months.  No indication of appeal in the record.

911223:	Retention Warning: Advised of deficiency (Your habitual unauthorized absences, and total disregard for military authority which resulted in Commanding Officer’s nonjudical punishment for violation of UCMJ Article 86 (5 specs) and UCMJ Article 92 (2 specs).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

921115:	Vacate suspended restriction awarded at Commanding Officer’s NJP dated 911223 with the following modification:  Restricted to the confines of Naval Station Norfolk, VA.  Reason for this vacation of suspension is being placed on report for violation of UCMJ Article 86 dated 920108.

920115:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 920104 until 0745, 920107 (2 days/surrendered).
	Award: Forfeiture of $393 per month for 2 months, reduction to SR.  No indication of appeal in the record.

920115:	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 all punishments under the UCMJ in your current enlistment.

920115:	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.

920121:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

920210:	Applicant on unauthorized absence status.

920211:	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 19920228 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).

In the Applicant’s issue 1, the Board found that the documentation provided listing the applicant’s post-service accomplishments was insufficient to warrant an upgrade of his discharge.  The applicant states that he has become a productive member of society and is truly repentant for his military offenses but provided documentation to show a few personal achievements, of which none demonstrate remorse for his military misconduct.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity existed in this case.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 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 can be considered.  Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  At this time, the applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (failure to obey a lawful order
) 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