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

 ex-AN, USN 
Docket No. ND03-00616

Applicant’s Request

The application for discharge review was received on 20030225.  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 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My conviction if I would have been at the time of the separation had been informed of my constitutional rights and options of the outcome of accepting there decision I most likely would have remained active duty.  At the time of the separation, I was going through many family problems, they were contributors of making my decision to separate from the armed forces.  If options would have been provided to me by my chain of command knowing the outcome as I know today most likely I would have stayed in t he service.”

Documentation

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

Letter from Applicant, dated February 11, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	931122 - 940118	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940119		Date of Discharge:  970221

Length of Service (years, months, days):

	Active:    03  01  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.40 (1)		OTA:  3.00	4.0 eval
Performance:  2.00 (4)	Behavior:  1.25 (4)		OTA:  2.08	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, NUC, BER (2), AFSM, JMUC, HSM

Days of Unauthorized Absence:  34

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

951018:	Applicant declared a deserter.

951103:	NJP for violation of UCMJ, Article 86 (3 specs):  (1) Unauthorized absence from 0600, 950918 to 0500, 951023 (34 days/surrendered), (2) Failed to go to appointed place of duty at the time prescribed on 0730, 951026, to wit: Divisional Morning Quarters, (3) Failed to go to appointed place of duty at the time prescribed on 0730, 951030, to wit: Divisional Morning Quarters, violation of UCMJ, Article 87 (3 specs): Missed ship’s movement through design on 950925, 951003 and 951010, violation of UCMJ, Article 92: Dereliction of duty by sleeping during working hours on 951029.
	Award: Forfeiture of $497 per month for 2 months, correctional custody for 30 days, reduction to SA.  Correctional custody deferred until 951109.  Reduction suspended for 6 months.  No indication of appeal in the record.

960410:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go to appointed place of duty on 960319, to wit: PRT Training from 0730 to 0830, (2) Fail to go to appointed place of duty on 960321, to wit: PRT Training from 0730 to 0830.
	Award: Forfeiture of $537 per month for 1 month, restriction and extra duty for 30 days, reduction to SA.  Reduction suspended for 6 months.  No indication of appeal in the record.

970206:	NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty, to wit: General Quarters station on 970114, violation of UCMJ, Article 92: Failure to obey lawful order on 970114.
	Award: Forfeiture of 1/2 months pay for 2 months, restriction and extra duty for 20 days, reduction to AA.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

970207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970207:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970212:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970221:	Commander, Amphibious Group TWO 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 19970221 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on three separate occasions.  Additionally, the Applicant was informed of his rights and elected to waive his rights.  The Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  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.   

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 14, effective 
03 Oct 96 until 971212, Article 3630605, 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