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

  ex-RMSN, USN
Docket No. ND03-00444

Applicant’s Request

The application for discharge review was received on 20030122.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031215.  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: GENERAL (UNDER 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:

Issue 1:  “My discharge was improper because it was based on one incident in my seven years of service.

My discharge was improper because I was in continuous contact with my command.”

Documentation

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

Police record check, dated January 10, 2003
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870902 - 870914	COG
	Active:   USN			870915 - 910830	HON

Period of Service Under Review:

Date of Enlistment:  910831		Date of Discharge:  940802

Length of Service (years, months, days):

	Active:    02  11  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  37

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.85 (4)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR (4), SASM, MUC, NER

Days of Unauthorized Absence:  2

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910831:	Applicant reenlisted for 6 years.

930623:	Counseling: Advised of deficiency (substandard dress/appearance), notified of corrective actions and assistance available.

931113:	Primary Care Clinic: O: Body Fat.  Height: 72”.  Neck: 18”.  Waist: 43.5”. Body Fat Percentage: 28%.  A: Obesity.  P: 1) Start P.E.  2) Not cleared for participation in PRT.  3) Cleared for remedial PRT – command program.  4) Recommend 6 week inpatient Level III treatment.

931220:	Applicant placed on remedial training program due to second failure of PRT.

940321:	Retention Warning: Advised of deficiency (Failure of the command PRT due to being over body fat standards.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940323:	Applicant placed on remedial training program due to third failure of PRT.

940423:	Applicant to unauthorized absence 0700, 940423.

940425:	Applicant from unauthorized absence 0700, 940425 (2 days).

940613:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 90: Willfully disobeying a superior commissioned officer, violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 107: False official statements.
	Award: Forfeiture ½ months pay for 2 months, reduction to RMSN.  Forfeiture suspended for 3 months.  Appealed.  Appeal denied.

940628:	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, and Weight Control Failure as evidenced by your failing three consecutive physical readiness tests, as evidenced by you Physical Readiness Test Results.

940705:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

940711:	Commanding Officer recommended discharge honorable by reason of misconduct due to the commission of a serious offense and weight control failure.

940722:	BUPERS directed the Applicant's discharge general (under 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 19940802 with a characterization of general (under 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 Applicant states his discharge was based on one isolated incident in “7 years of service.”  In the civilian world this type of offenses may be treated with leniency because they are a first time incident on an otherwise clear record.  In order to maintain proper order and discipline, the military does not view such offenses as minor.  The Applicant’s service record is marred by award of non-judicial punishment (NJP).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  Relief denied.  

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous four years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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, a drug-free lifestyle, 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 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