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

 
 ex-SN, USN
Docket No. ND03-00558

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040128.  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 stated

Applicant’s issues, as stated on the application:

“1.  I would like to return active duty to complete the remaining 28 months of my contract.  It is my duty to support & defend the constitution of the United States and preserve Americas freedom & way of life.”

Documentation

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

Service related documents (4 pages)
Letter from Applicant
Poem from Applicant
Letter from Department of Veterans Affairs 
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000215 - 000228	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  000301		Date of Discharge:  011121

Length of Service (years, months, days):

	Active:    01  08  21
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*  No Marks Found

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:

010927:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86: Did on active duty, being a member of the watch, did, on board USS SAMUEL B. ROBERTS, on or about 05 September 2001, without authority, did go from his watch, with the intent to abandon the same; Charge II: violation of the UCMJ, Article 90: (2 Specifications), Spec 1: Did on board USS SAMUEL B. ROBERTS, on or about 07 September 2001, by moving his arms and body in an aggressive manner and moving towards Commander D.A. L__, U.S. Navy, offer violence against the said commander, his superior commissioned officer, then known by the accused to be his superior commissioned officer, who was then in the execution of his office; Spec 2: Did on board USS SAMUEL B. ROBERTS, on or about 07 September 2001, by moving his arms and body in an aggressive manner and moving towards Lieutenant Commander J__, U.S. Navy, offer violence against the said lieutenant commander, his superior commissioned officer, then known by the accused to be his superior commissioned officer, who was then in the execution of his office ; Charge III: violation of the UCMJ, Article 92: On active duty, who knew of his duties on board USS SAMUEL B. ROBERTS, on or about 5 September 2001, was derelict in the performance of those duties in that he negligently failed to stand proper watch as port/starboard lookout, as it was his duty to do.  Charge IV: violation of the UCMJ, Article 134: Did on board USS SAMUEL B. ROBERTS, on or about 09 September 2001, wrongfully communicate to Commander D.A. L____, U.S. Navy, a threat to kill Commander D.A. L___ by leaving a letter in Commander D.A. L___’s mailbox, stating, “You’re a Deadman CO”, or words to that effect, and by placing an axe in Commander D.A. L___’s mailbox.
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specification 1 thereunder, guilty except the words “and moving toward”. Of the excepted words: Not Guilty.  Of Specification 1 under the Charge as excepted: Guilty, to specification 2 thereunder charge II guilty except words “and moving toward”. Of the excepted words: Not Guilty.  Of Specification 2 under the Charge as excepted: Guilty.  To Charge III and the specifications thereunder, guilty, to Charge IV and specification thereunder, guilty except the words “by placing an axe in Commander D.A. L__’s mailbox” substituting therefore the words “by leaning an axe against the door handle of Commander D.A. L___’s stateroom door”.  Of the excepted words: Not Guilty.  Of the substituted words: Guilty.  Of Specification under the Charge: Guilty.
	Sentence:  Confinement for 75 days, forfeiture of $200.00 pay per month for 2 months, reduction to E-1.
	CA 010927:  Sentence approved and ordered executed.
	
011002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

011002:  	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.

011004:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court-Martial on 27 September 2001.  

011019:	Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved Chief of Naval Personnel request that Applicant be separated from the naval service with an Other Than Honorable Discharge.
    
011119:	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 20011121 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 has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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.   

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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