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

  ex-HTFN, USN
Docket No. ND03-00345

Applicant’s Request

The application for discharge review was received on 20021227.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable.  The Applicant requests 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 20031205.  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

Applicant’s issues, as stated on the application:

1.  “THE DISCHARGE IS IMPROPER BECAUSE I FILED FOR HUMANITARIAN TRANSFER AND HARDSHIP DISCHARGES.  MY DIVISON OFFICER (ENSIGN M_) WAS ALSO THE LEGAL OFFICER ONBOARD THE U.S.S. DUBUQUE LPD-8 AND WAS UPSET BECAUSE I WANTED TO BE WITH MY WIFE IN THE UNITED STATES.  HE CONVIENIENTLY LOST MY TRANSFER AND DISCHRAGE REQUESTS AND DENIED THAT I EVER FILED THEM.  I, WITHOUT ANY KNOWN OPTIONS, DECIDED TO GET INTO TROUBLE BY MISSING A 3 DAY SHIP MOVEMENT.  WHEN MY SHIP ARRIVED BACK AT SASEBO I IMMEDIATELY TURNED MYSELF INTO THE CHIEF MASTER-AT-ARMS.  I THEN WHEN TO CAPTAINS MAST AND INFORMED CAPTAIN G_ THAT I WOULD NOT CONFORM AS LONG AS I WAS SEPARATED FROM MY WIFE.  HE SAID FINE AND SENT ME TO TPU TREASURE ISLAND, CA FOR AN OTHER THAN HONORABLE DISCHARGE.  I DID NOT CONTEST THE DISCHARGE AT THE TIME BECAUSE IT WOULD HAVE KEPT ME INVOLVED IN CALIFORNIA INDEFINITELY.”

Documentation

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

Letter of Appreciation, CO, Naval Air Warfare Center Aircraft Division Lakehurst, dtd May 12, 1992
Citation for professional achievement in performance of duties, from USS DUBUQUE, from Apr 94 to Jun 94
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901029 - 910805	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910806		Date of Discharge:  950405

Length of Service (years, months, days):

	Active:    03  08  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (2)	Behavior:  3.8 (2)		OTA:  3.9

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  3

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:

911206:	Retention Warning:  Advised of deficiency (possession of weapons and dangerous devices), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940903:	NJP for violation of UCMJ, Article 86:  Unauthorized absence (9 – 11 August 1994).
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3 (suspended).  No indication of appeal in the record.

941119:	NJP for violation of UCMJ, Article 92:  Derelict in performance of duties; violation of UCMJ Article 86: Unauthorized absence (7 Nov 94 and 15 Nov 94 to 16 Nov 94).
	Award:  Forfeiture of ½ per month for 2 months, restriction and extra duty for 45days, reduction to E-3.  No indication of appeal in the record.

950309:	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 incidents during current enlistment for which a punitive discharge could have been awarded.

950309:	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.

950310:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  “HTFN G_ (Applicant) reported onboard this command 24 Nov 94.  However, his service record was not received until 23 Feb 95.  HTFN G_ (Applicant) was made TEMDU to this command by reference (b) (BUPERS Washington DC 071935Z Mar 95) for reprocessing in accordance with article 3630600 of reference (a) for commission of a serious military offense.  HTFN G_ (Applicant) waived his rights to an Administrative Board on 9 Mar 95.  Further retention on active duty is not in the best interest of the member or the Navy.  Therefore, it is recommended that HTFN G_ (Applicant) be separated from the naval service with an Other Than Honorable discharge by reason of misconduct.”

950331:	BUPERS directed the Applicant's discharge.  [SECOND PAGE OF MSG NOT IN SERVICE RECORD.]

030701:	Board for Correction of Naval Records found that the NJP of 19 Nov 1994 was valid.  No corrections were authorized. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950405 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions.  Additionally, there is no evidence in the official record, nor did the Applicant provide any documentation that a request for a humanitarian or hardship discharge was ever made.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

The following is provided for the edification of the Applicant.  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 any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is not warranted.

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 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