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

 ex-BM2, USN 
Docket No. ND03-00614

Applicant’s Request

The application for discharge review was received on 20030227.  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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was improper because of some of the improper things that were done by my Chief, Who did some things that are illegal.  My chief did not turn in some mast, and I was sent to mast and lost my postal destination.  When I started going through some hard times I feel the navy turn their back on me.  After 10 years of good service.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of the application.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant’s wife, dated March 24, 2003
Applicant’s orders to active duty, dated March 7, 2003
Letter from Applicant’s wife, dated July 10, 2003
Forty-two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880331 - 880910	COG
	Active:   USN 		880911 - 910912	HON
		   USN			910913 – 960718	HON

Period of Service Under Review:

Date of Enlistment:  960719		Date of Discharge:  990210

Length of Service (years, months, days):

	Active:    02  06  22
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  26

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.33 (3)	Behavior:  2.33 (3)		OTA:  2.43

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MOSR (4), SSDR (4), AFEM (2), GCM (2), SASM, KLM, CAR, NDSM, MUC, Letter of Appreciation, Letter of Commendation, KLM (K)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

971205:	NJP for violation of UCMJ, Article 92: Dereliction of duty.
	Award: Forfeiture of $782 per month for 2 months, restriction and extra duty for 15 days, reduction to PC3.  Reduction suspended for 6 months.  No indication of appeal in the record.

971205:	Retention Warning: Advised of deficiency (Dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from supporting document submitted by the Applicant.]
	
990106:	NJP for violation of UCMJ, Article 86: Absence without leave on 980902.
	Award: Restriction and extra duty for 15 days, reduction to BM3.  Reduction suspended for 6 months.  No indication of appeal in the record.

990106:	Retention Warning: [Extracted from Commanding Officer’s letter dated 990125.]  No further information found in service record.
	
990126:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from supporting document submitted by the Applicant.]

990126:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Extracted from supporting document submitted by the Applicant.]

900125:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): Based on the severity of driving under the influence and his previous military offenses, I order BM2 H_ (Applicant) be separated from the Naval Service with a General discharge (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990210 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented by the award of two non-judicial punishments (NJP’s) for violation of UCMJ articles 92 and 86.  Therefore, relief is denied. 

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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time the Applicant has not submitted sufficient documentation for the Board to consider.  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 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 18, effective 
12 Dec 97 until 29 March 2000, 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