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

ex-AMEAA, USN 
Docket No. ND03-00563

Applicant’s Request

The application for discharge review was received on 20030213.  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 20040114.  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:

“1.  I feel that my discharge was inequitable because it pertains to a single instance of alleged insubordination toward a Naval Officer.  I had missed a physical readiness test (PRT) because of personal reasons.  I approached the Officer in charge of the PRT, but he was unavailable during the two days following the scheduled test.  On the third day, Lt R___, my Division Officer, came to confront me about why I had missed the PRT.  The resulting conversation was misrepresented that I had supposedly sworn at LT R__.  I was directed to a Captain’s Mass, where I was reduced in rank, given 45 days of extra duty, 45 days of restriction to base, and one month’s forfeiture of pay.  On the third day of my time of restriction to base, I was notified that I was scheduled for a separation physical.  To my surprise, my unit had initiated the discharge process.  I had earlier requested a transfer out of the unit a couple of months prior the incident because I felt that the unit politics were against the junior enlistment sailors.  This request has been denied.

I had no criminal or any sort of illegal activity background before, during, or after my service other than couple of speeding tickets.  The discharge was a big disappointment to me, because I was planning on making the Navy a career for me.  I feel that I was really good at what I was doing, and I wanted to continue to pursue the many opportunities available in the Navy.  I have since started to go to school, but have not been able to use my GI Bill because of the General (Under Honorable Conditions) Discharge.  It is for this reason that I request that my discharge be upgraded to Honorable.  Your favorable consideration to this request is greatly appreciated.”

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900829 - 910304	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  910305		Date of Discharge:  940802

Length of Service (years, months, days):

	Active:    03  04  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rate:  AMEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.40 (4)		OTA:  3.55

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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:

920326:	Retention Warning:  Advised of deficiency (Failure to maintain adequate room inspection standards), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920407:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order issued by the Executive Officer, Fighter Squadron FORTY-ONE, Naval Air Station Oceana, Virginia Beach, VA, on or about 920319, to keep his barracks room inspection ready, did, at Barracks 431, Room 204E, fail to obey the same by failing his room inspection.
	Award:  Forfeiture of $1/2 pay per month for 2 months (suspended for 6 months), restriction to NAS Oceana for 60 days (suspended for 6 months), extra duty for 60 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

940512:	NJP for violation of UCMJ, Article 89: Disrespect toward a Superior Commissioned Officer, LT M__ R. R___, in the Fighter Squadron FORTY-ONE AME shop, located at Hangar 200, Naval Air Station Oceana, Virginia Beach, VA, on or about 920503, by saying to him” I had fucking problems and didn’t get back in time” and; “I have fucking problems so I got drunk that night and didn’t get up in the morning,” or words to that effect; while he, the said Lieutenant R_, was talking to him; violation of UCMJ Article 92: Failure to obey a lawful order issued by Executive Officer, Fighter Squadron FORTY-ONE, Naval Air Station Oceana, Virginia Beach, VA, to participate in the semi-annual command PRT, fail to obey the same by not participating in the command PRT, on or about 1600, 940428, and 0715, 940429.
	Award:  Forfeiture of $467.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

940601:	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 nonjudicial punishment on 940512 for disrespect toward a superior commissioned officer and failure to obey a lawful order.

940608:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940706:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge general under honorable conditions.

940708:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by nonjudicial punishment on 940512 for disrespect toward a superior commissioned officer and failure to obey a lawful order.  

940801:	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:  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 general (under honorable conditions) is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions.  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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief 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.   At this time, the Board determined that the documentation provided by the Applicant does not mitigate his misconduct while on active duty.  Relief denied.

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