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

 ex-FR, USN
Docket No. ND03-00865

Applicant’s Request

The application for discharge review was received on 20030424.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to hardship.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to San Benito, TX.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NRDB), does not travel, all hearing are held in the Washington DC area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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.  “While being a fireman in the Navy, I made a couple of very poor chices in which the consequences have put me in a very bad position.  Anyhow, I accept all responsibility for my actions.  However, I would greatly appreciate the consideration to up grade my discharge as well as my reentry code (block 27 on DD Form 214) I disrespected a Chief Petty Officer and I am unbelievably sorry for it.  When I spoke with my Captain at Captain’s Mast, I said all violations of the UCMJ were true nevertheless, I requested an Admin Board.  While awaiting a response from the review board, which took over 5 months, I began having issues with family members back home.  So I waived my rights for an Admin Board, which I truly regret.  Day after I was separated from the Navy.  Now that I am out of the service, I realize what great opportunities that I have thrown away.  I feel somewhere in the armed forces there is still a place for me.  All I’m asking is one more chance in a uniform, and I can be used to protect my country.  Thank you for taking my review into consideration.”

Documentation

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

Letter from Applicant’s father dated April 11, 2003
Employment Reference Letter dated May 2, 2002
Copy of DD Form 214
Handwritten statement of community service hours
Certificate of Completion (Anger Management Program)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000831 - 000920	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  000921		Date of Discharge:  020212

Length of Service (years, months, days):

	Active:    01  04  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  FA

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:  None

*  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:

010720:	Civil Conviction:  [Kitsap County Superior Court] for Assault in the 4th degree.
Sentence:  365 days confinement, 240 hour of Community Service, 2 years probation.

010906:	NJP for violation of UCMJ, Article 80: Attempt to escape from custody on 010902, violation of UCMJ Article 91 (3 Specifications), Specification 1: Disrespect in language to shore patrol on 010902, Specification 2: Treat with contempt, shore patrol, by spitting at them on 010902, Specification 3: Disobey the lawful order of shore patrol on 010902, violation of UCMJ Article 95: Resist arrest on 010902, violation of UCMJ, Article 134: (2 Specifications), Specification 1: Drunk and disorderly conduct on 010902, Specification 2: Public intoxication on 010902.
	Award:  Forfeiture of $521.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

020105:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020116:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to the commission of a serious offense. 

020207:	COMNAVSURFGRU PACNORWEST 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 20020212 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.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by award of non-judicial punishment (NJP), and a civil conviction.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief, is therefore, denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 related 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