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

 
ex-SA, USN
Docket No. ND03-00560

Applicant’s Request

The application for discharge review was received 20030214.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040325  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 stated

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s Counsel (Veterans of Foreign Wars):

1.  Equity

2.  Post-Service Conduct

Documentation

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

Applicant’s DD Form 214
NAVPERS 1650/65 (7-91)
Applicant’s statement, dated February 8, 2003
Letter from Chicago State University, undated
Student Academic history, dated March 26, 2004
Employment verification letter, dated March 29, 2004
Employment verification letter, dated March 31, 2004
Academic Transcript from ABLE Technical Training Center, dated April 19, 2001
Certificate of Achievement, dated April 17, 2001
Letter from Harold Washington College, dated May 7, 2001
Social Security Administration Certification of Extract from Records, dated April 18, 2001
Letter from The Cooking and Hospitality Institute of Chicago, dated March 4, 2004
Social Security Statement, dated July 23, 2003
American Red Cross, Community First Aid and Safety certification, dated August 11, 1998
American Red Cross, Infant and Child CPR certification, dated August 11, 1998
American Red Cross, Adult CPR certification, dated August 11, 1998
Application for Westwood College of Aviation Technology, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880129 - 880501	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880502		Date of Discharge:  900403

Length of Service (years, months, days):

	Active:    01  11  02
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.31 (7)	Behavior:  2.88 (7)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

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:

880505:	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.
	
880512:	Retention Warning:  Advised of deficiency (4th Class Swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
880805:	Retention Warning:  Advised of deficiency (880727-Failed to shave prior to reporting for duty, 880802-Unauthorized absence from Bravo Class Muster at 1015, 880804-Failed to shave prior to reporting for duty, reported for duty wearing red undershorts with summer white uniform.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
880824:	NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 880819.
	Award: Forfeiture of $100 per month for 1 month, oral reprimand.  No indication of appeal in the record.

890223:	Retention Warning:  Advised of deficiency (Sub-standard behavior and conduct displayed towards other shipmates.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
890614:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 890523.
	Award: Extra duty for 5 days.  No indication of appeal in the record.

891005:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ, Article 91: Willful disobedience of a petty officer.
	Award: Extra duty for 10 days.  No indication of appeal in the record.

900308:	NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 121: Larceny.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 20 days, reduction to SA.  No indication of appeal in the record.

900309:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

900309:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900328:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): “SA R_ (Applicant) has contrived intricate and detailed stories to excuse repeated disrespect, unauthorized absence, provoking behavior, and improper military appearance.  At work, he demonstrates some initiative and consistent effort.  His behavior, however, has been unconscionable.  He has been counseled numerous times by his chain of command, including sessions with the command master chief, the executive officer and myself.  All efforts at redirecting his energy in a positive direction have failed.  His most recent act was one of flagrant and blatant disregard toward military authority and regulation.  His unsavory influence and continued presence is profoundly prejudicial to good order and discipline on board.  He has no potential for further naval service, and is strongly recommended for discharge under other than honorable conditions.”

900330:	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 19900403 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 Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions, adverse counseling entries, and performance and conduct markings well below the minimum acceptable levels.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a general (under honorable conditions) characterization of service.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an procedural error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.

Issue 2:  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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