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

ex-ITSR, USN
Docket No. ND03-00841

Applicant’s Request

The application for discharge review was received on 20030410.  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 20040312.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I respectfully request for my military discharge to be upgraded to “Honorable.

I have made my mistakes in the past and I regret my actions, but have learned from them and wish to make a better future for myself, my family & my country.

Since leaving the navy, I have returned to work and am now registered in class working on my college degree.  I am living a respectful life with honor.  I believe I am a good citizen.

I am a man of good character and having my discharge upgraded to “Honorable” will help me restore my dignity and complete my learning experience in the military.

I humbly petition the Naval Counsel of Personnel Boards to help me restore my honor and dignity by granting me this upgrade.  Thank you for helping a citizen who is making a change for the better and creating a successful future”.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990224 - 990419	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  990420		Date of Discharge:  020304

Length of Service (years, months, days):

	Active:    02  10  15
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  ITSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  234

*  No Marks Available for review

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

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

Chronological Listing of Significant Service Events:

000428:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, violation of UCMJ Article 92: Failure to obey a lawful regulation, violation of UCMJ, Article 134: Disorderly conduct, drunkenness, violation of UCMJ, Article 134: Communicating a threat.
	Award:  Forfeiture of $502. 00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

001109:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: UA (2 specifications),
	Specification 1: UA from USS KITTY HAWK (CV-63) from 000904 until apprehended by COMFLEACT YOKOSUKA, JAPAN SEC-PERSONNEL on 001005 (30 days), Spec 2: UA from 001006 to 001008 (2 days/A).  Charge II: violation of the UCMJ, Article 87: (2 specifications), Missing movement. 
Finding:  to Charge I and specifications 1 and 2 thereunder, guilty, to Charge II and specifications 1 and 2 thereunder, guilty. 
	Sentence:  Confinement for 20 days, forfeiture of $600.00.
	CA action 001109:  Sentence approved.

010905:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86,
	Unauthorized absence 001206 – 010628, [202 days]
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 3 months, forfeiture of $500.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA (no date found in record):  Has not acted, will be forwarded upon receipt [Extracted from CO’s message].
	
010905:	Terms of pretrial agreement:  Punitive Discharge: Will not be approved as adjudged.  Confinement or restraints: May be approved as adjudged, however, all confinement in excess of ninety days will be suspended for a period of twelve months from the date of the sentence is approved, at which time unless sooner vacated, it will be remitted without further action.  Forfeitures and/or fines: May be approved as adjudged.  Reduction in Pay Grade: May be approved as adjudged.  Any other lawful punishment: May be approved as adjudged.

011221:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

011221:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020118:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

020204:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge with a characterization of Other Than Honorable because ITSR V__’s special court martial did not impose a punitive discharge.

020222:	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 20020304 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.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a non-judicial punishment (NJP), Summary Court-Martial, and a Special Court-Martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the applicant.  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.  

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 or any other evidence pertaining to his discharge 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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