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

ex-SR, USN
Docket No. ND03-00753 

Applicant’s Request

The application for discharge review was received on 20030326.  The Applicant requests the characterization of service on the discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Discharge Review Board in the Washington National Capital Region.  The Applicant designated a civilian as the representative on the DD Form 293, but later advised the Board, the civilian would not be his representative.  

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20040316.  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 discerned by the NDRB.  The Board’s vote was unanimous that the character and the narrative reason for the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

“1.  Reenlistment
 2.  Change RE code
 3.  Post-service”

Documentation

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

Letter from Applicant dated March 17, 2002
Virginia Courts Case Information (3 pages) 
Red Cross Certificate of Appreciation
Certificate of Course Completion
Security Guard Training Certificate
Certificate of Incorporation
High School Transcripts (5 pages)
Chesapeake Business License (2 pages)
Birth Certificate
Letter from Department of Veterans Affairs
Letter from NCIS, dated July 8, 2003
Letter from NCIS
Letter from NCIS, dated Aug 12, 2003 
Memorandum from Inspector General, Defense Security Service, dated Sep 23, 2003
Response to Privacy Act request 
Letter from Department of Veterans Affairs
Letter from U.S. Dept of Justice, (4 pages)
Letter from Defense Security Service, (2 pages)
Letter from Office of Personnel Management, dated December 18, 2003
Letter from Naval Air Station Oceana Commanding Officer, dated Dec 19, 2003
Uncertified Certificate of Preferred Stock
Application for certificate of authority (15 pages)
Letter from Education Direct, dated Nov 4, 2003
Packing Slip (2 pages)
Letter from Federal Trade Commission, dated July 16, 2003 (3 pages)
Education Direct transcript and test (11 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900416 - 900604	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900605		Date of Discharge:  930519

Length of Service (years, months, days):

	Active:    02  11  15
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 (7 months extension)

Education Level:  12			AFQT:  54

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  3.40 (2)		OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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:

930126:	Applicant declared a deserter on 930126 having been an unauthorized absentee since 0545, 930126 from USS JOHN RODGERS.

930203:	Applicant surrendered to military authorities at 930127 (1130) at PSD ROOSEVELT ROADS PR.  Returned to military control 930127 (1130).  Transferred to COMDESRON FOUR and further transferred to TPU CHASN SC pending transportation arrangement by NAVPTO CHASN SC for return to parent command under technical arrest orders.

930319:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	UA 930126-930127 (29:45hrs/S); violation of the UCMJ, Article 87: Missed ship’s movement on 930126.
	Finding:  to Charge I, guilty.
	Sentence:  CHL for 30 days, reduced to E-1.
	CA action 930326:  Sentence approved and ordered executed.

930326:	Applicant notified of consideration for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930330:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930402:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: “SR D__  (Applicant) was convicted at Summary Court Martial for violation of UCMJ Article 86 (Unauthorized Absence) and UCMJ Article 87 (Missing Ship’s Movement).  His irresponsible actions create a burden on his shipmates and represent a threat to good order and discipline.  He has demonstrated no further potential for further service.  I most strongly recommend separation with characterization as OTH.”

930409:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930416:	Refused treatment in a VA hospital.

960709:	NDRB documentary record review Docket Number ND96-00648 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930519 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 and 2:  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.  However, 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.  

Issue 3:  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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board commends the Applicant’s efforts at continuing his education and starting his own business.  However, the Board determined that the Applicant’s post-service accomplishments did not mitigate his misconduct while on active duty.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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