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

 ex-MMFN, USN
Docket No. ND03-00067

Applicant’s Request

The application for discharge review, received 20021009, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I believe that the discharge received “misconduct under other than honorable conditions is inequitable because it was based on an incident after 22 months of service.  The following are reasons/issues that the discharge should be changed to general under honorable conditions:

(1)  I had attended and completed difficult basic training; MM “A” Nuclear School; Nuclear Power school; and Nuclear Prototype school in exemplary fashion.

(2) had excellent evaluations entire time in service,

(3) had never been in any type of trouble before entry into service nor any since discharge,

(4) at time of the boat accident I told the state police that I was driving the boat because I was “not” drunk as proven by a blood alcohol test conducted by request of the state police.

(5) out of the 6 people who went to Captain’s Mast that was involved in the accident, I was the only one that was recommended for discharge under misconduct with other than honorable conditions.  This ended my naval submarine career that I was looking forward to and barred me from any  type of Veteran’s benefits; and if I had previously given the names of everyone at the end of schooling party and we all had gone to Captain’s Mast there was the possibly of the entire class not going into the Nuclear fleet after 65 weeks of schooling.  I feel that my refusal to give the names at the end of school party was used against me at the accident mast.

Documentation

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

Copy of DD Form 214
Character Reference ltr from S_ S_, Chief of Police, dtd Aug 28, 2002
Letter from Employer, J_ S_, Service Manager, Railserve Inc., undtd
Applicant’s Statement of Student Account, Kilgore College, dtd Aug 5, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970929 - 980901	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980902		Date of Discharge:  000828

Length of Service (years, months, days):

	Active:    01  11  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  98

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (4)	Behavior:  2.25 (4)		OTA:  2.88

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000407:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order, in that MM3 O_ (Applicant) attempted to purchase alcohol under the age of 21 in violation of NPTU Ballston Spa Administrative Memo #10, Para 3 stating military disciplinary actions could be faced if involved with underage consumption or purchase of alcohol; violation of UCMJ Article 134:  False or unauthorized pass offenses – in that MM3 O_ (Applicant) did wrongfully and falsely alter by putting a false date of birth on an instrument purporting to be an official identification card.
	Award:  Forfeiture of $585.00 per month for 2 months, restriction for 29 days, reduction to E-3.  No indication of appeal in the record.

000614:	NJP for violation of UCMJ, Article 92:  Disobeying a lawful order. 
	Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (Suspended for 6 months).  No indication of appeal in the record.

000803:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct – pattern or misconduct and misconduct due to the commission of a serious offense.

000803:	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.

000818:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim):  “MMFN O_ (Applicant)’s disregard for military rules and regulations makes him an administrative burden to the Navy.  MMFN O_ (Applicant) has received Captain’s Mast twice in the past five months for drinking under the age of 21 and disobeying a lawful order.  MMFN O_ (Applicant)’s conduct cannot be tolerated and is detrimental to the good order and discipline of this command and the Navy.  MMFN O_ (Applicant) possesses no potential for further naval service.”

000823:	Commander, Naval Region, NE, Groton, CT 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 20000828 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 1-5:  The Applicant states his character is demonstrated by his performance at power school and prototype.  The Board agrees the Applicant performed well in the nuclear pipeline, but his performance prior to the misconduct does not mitigate his offenses.  The Applicant states his discharge was based on one isolated incident in “22 months of service.”  Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions to maintain proper order and discipline.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for underage drinking, false identification and disobeying a lawful order, thus substantiating the misconduct for which he was separated.  Disobeying a lawful order warranted processing for separation, normally under other than honorable conditions.  Regarding the Applicant’s boating accident, it was not used to process or characterize his discharge.  Additionally, other Sailors who have similar offenses but are processed or punished differently does not necessarily serve as a basis for relief.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied. 

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 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, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.    At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION 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