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

  ex-EMFA, USN
Docket No. ND03-00190

Applicant’s Request

The application for discharge review, received 20021113, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues, as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of DD Form 214
Character Reference Letter (2 pages)
Employment Reference Letter
Letter of Recommendation dated October 22, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	861215 - 871006	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  871007		Date of Discharge:  910404

Length of Service (years, months, days):

	Active:    03  05  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rate:  EMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.26 (3)	Behavior:  3.20 (3)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  3

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:

871017:	Retention Warning:  Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
880517:	Retention Warning:  Advised of deficiency (Poor military performance, without authority absent yourself from your organization, to wit: Service School Command, Great Lakes, Illinois), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880517:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1730, 880429 to 1336, 880502 (3 days/S).
	Award:  Forfeiture of $75.00 pay per month for 1 month, restriction to BLDG 234 SSC GLAKES IL for 7 days, extra duty for 7 days.  No indication of appeal in the record.
	
880712:	NJP for violation of UCMJ, Article 91: (2 Specifications), Specification 1: Failed to obey a lawful order, Specification 2: Disrespectful in language toward a petty officer.
	Award:  Forfeiture of $150.00 pay per month for 1 month.  No indication of appeal in the record.

890104:	NJP for violation of UCMJ, Article 86: (2 Specifications), Absent himself from appointed place of duty to wit: Galley; violation of UCMJ, Article 91: Disobeying a lawful order; violation of UCMJ, Article 92: Derelict in the performance of his duties.
	Award:  Correctional Custody for 30 days, reduction to E-1.  No indication of appeal in the record.

890123:	Retention Warning:  Advised of deficiency (Violation of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
891124:	NJP for violation of UCMJ, Article 128: Assault; violation of UCMJ Article 134: Intoxication; violation of UCMJ Article 91: Disrespect.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 15 days (suspended for 6 months), reduction to E-1.  No indication of appeal in the record.

901217:	NJP for violation of UCMJ, Article 89: (2 Specifications),disrespectful toward his superior commission officer on 901108; violation of UCMJ Article 90: (2 Specifications), Specification 1: Disobeyed a lawful command from a commissioned officer, Specification 2: Offered violence toward a commissioned officer.  Additional Charge: violation of UCMJ, Article 128: Assaulted another military member on 901201. 
	Award:  Forfeiture of $422.00 pay per month for 1 month, extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

901221:	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 your nonjudicial punishment for violation of UCMJ, Article 89 (disrespect to a superior commissioned officer), UCMJ Article 90 (disobeyed order from superior commissioned officer and offer violence towards a superior commissioned officer, and UCMJ Article 128 (assault).

901226:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910213:	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 recommended discharge under other than honorable conditions.

910301:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

910322:	CNMPC 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 19910404 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).

The Applicant did not introduce any decisional issues for the Board’s consideration.  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 five separate occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect 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 to honorable would be inappropriate.  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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, 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