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

 ex-SA, USNR 
Docket No. ND03-00251

Applicant’s Request

The application for discharge review was received on 20021125.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

Issues submitted by Applicant’s counsel/representative (American Legion):

“1.  (Equity Issue) This former member 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:

None

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:  940525		Date of Discharge:  960810

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  00  02  09

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  41

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC

Days of Unauthorized Absence:  65

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940804:	Applicant ordered to active duty.

950907:	NJP for violation of UCMJ, Article 91 (3 specs): Disrespectful in language, violation of UCMJ, Article 92 (2 specs): Disobeying a lawful order, violation of UCMJ, Article 134: Communicate a threat.
	Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960203:	Applicant to unauthorized absence 0730, 960203.

960207:	Applicant from unauthorized absence 0900, 960207 (4 days/surrendered).

960224:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730. 960203 to 0900, 960205 (2 days/surrendered), violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer.
	Award: Forfeiture of $100 per month for 1 month, extra duty for 45 days, reduction to SR.  Reduction suspended for 3 months.  No indication of appeal in the record.

960224:	Retention Warning:  Advised of deficiency (Unauthorized absence and disrespect to commissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
960505:	Report of return of deserter: Applicant apprehended by civilian authorities 0130, 960531 and returned to military control 0145, 960531.

960627:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0700, 960401 to 0145, 950531 (59 days/apprehended).
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed movement through neglect on 960409.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $490.00, confinement for 30 days.
	CA action 960627: Sentence approved and ordered executed.

960628:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960628:	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.

960722:	Commander, Amphibious Group Two approved the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960801:	Commanding Officer recommended 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 19960810 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  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.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  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, is considered.  The applicant provided no documentation of his post-service for the Board to consider.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided documentation of good character and conduct.  Therefore, no relief will be granted.  

The Applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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