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

 
 ex-BM2, USN 
Docket No. ND03-00977

Applicant’s Request

The application for discharge review was received on 20030512.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to S.A.  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 20040408.  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 and reason for discharge shall not change.  The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My undesirable discharge is inequitable because it was based on 3 PRT failures out of 11 years of service.  My final P.R.T. test, before I went to the Admin Board, I passed.

2.  ”Misconduct was unfair because I was charged with U.A and failure to obey a lawful order for the same offense. 

Additional issues submitted by Applicant:

3.  “Subj.  I am respectfully requesting my discharge be changed from General (under honorable conditions) to Honorable.  I am also requesting Block #28 narrative reason for discharge be upgraded from misconduct.

The reason I am making this request is I as separated from the Navy because I failed 3 physical readiness test in 3 years because of body fat (21% or more automatic failure).  The misconduct in block #28 of my DD214 was because I was charged with/and convicted of unauthorized absence (from remedial physical training) and failure to obey a lawful order( I was ordered to go to remedial P.T.) at Captains Mast.  Both of these violations were for the exact same offence.  The misconduct was because of the failure to obey a lawful order.  Since I have left the Navy I have gone to two police academies and graduated both.  The first was Millington Police Academy in Millington, TN and the second was the Texoma Reginal Police Academy in Denison, TX.  After I completed the Millington Police Academy, I applied for a position with the Memphis Police Dept.  I was rejected because of my discharge.  After moving to Texas and completing the Police Academy here, my discharge is still keeping my from gainful employment.  I don’t believe this was the intention of the Admin Separation Board I had.  I would forever be grateful of any improvement you may be able to make to my DD214.”

Documentation

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

Copy of Deficiencies of Administrative Board (3 pages)
Copy of Texoma Regional Police Academy Certificate
Copy of Millington Police Department Certificate of Training
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	840926 - 850613	COG
	Active:   USN			850614 – 900724	HON
Active:   USN			900725 - 930713	HON

Period of Service Under Review:

Date of Enlistment:  930714		Date of Discharge:  960313

Length of Service (years, months, days):

	Active:    02  07  29
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 

Education Level:  12			AFQT:  NMA*

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.93 (3)	Behavior:  4.00 (3)		OTA:  3.93

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM, OSR(2), NDSM, MUC, SSDR, GCA, AFEM, BATTLE”E”, NUC

Days of Unauthorized Absence:  None

*No Mark Available for review

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930714:	Reenlisted at Special Boat Unit 26, PSD Panama for 4 years.

950331:	Recommendation for advancement to Petty Officer First Class withdrawn due to failure of second consecutive PRT cycle and failing to meet physical readiness standards at time of evaluation.
  
950428:	Record of Enlisted Counseling: Responsibilities. 

950518:	NJP for violation of UCMJ, Article 86: Did on or about 950501, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Naval Air Station Memphis Gym (Remedial PT), violation of UCMJ Article 92: Violate a lawful general order/regulation, to wit NASMFSINST 6110.1H dated 15 November 1993, by wrongfully failing to attend mandatory remedial physical training.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

950710:	Record of Enlisted Counseling: Responsibilities.

950804:	NJP for violation of UCMJ, Article 86 (4 Specifications): Unauthorized absence from appointed place of duty to wit: Naval Air Station Memphis Gym (Remedial PT) on 950707, 950710, 950724, and 950725, violation of UCMJ Article 92: (5 Specifications), Specification 1: Did at Naval Air Station Memphis, Millington, TN on or about 950707, violate a lawful order/regulation to wit: NASMFSINST 6110.1H dated 15 November 1993, by wrongfully failing to attend mandatory remedial physical training, Specification 2: Did at Naval Air Station Memphis, Millington, TN on or about 950710, violate a lawful order/regulation to wit: NASMFSINST 6110.1H dated 15 November 1993, by wrongfully failing to attend mandatory remedial physical training, Specification 3: Did at Naval Air Station Memphis, Millington, TN on or about 950724, violate a lawful order/regulation to wit: NASMFSINST 6110.1H dated 15 November 1993, by wrongfully failing to attend mandatory remedial physical training, Specification 4: Did at Naval Air Station Memphis, Millington, TN on or about 950725, violate a lawful order/regulation to wit: NASMFSINST 6110.1H dated 15 November 1993, by wrongfully failing to attend mandatory remedial physical training, Specification 5: Did at Naval Air Station Memphis, Millington, TN, having knowledge of a lawful order issued by AK2 M_ E. G_ (MWR Dept.  LPO), to attend 0600, remedial PT class and report to work at 0730, an order which it was his duty to obey, did on or about 24 and 25 July 1995, fail to obey the same by wrongfully failing to go at the time prescribed to his appointed places of duty.
	Award:  Extra duty for 30 days, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

950920:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of failure to meet physical readiness standards by not passing the PRT and failing to maintain body fat standards misconduct due to the commission of a serious offense.

950920:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

951012:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant did fail to meet physical readiness standards by not passing the PRT and by not maintaining body fat standards within the meaning of MILPERSMAN 3620260, and committed a serious offense, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

960123:	Commanding Officer recommended discharge under other than honorable conditions by reason of failure to meet physical readiness standards by not passing the PRT and failing to maintain body fat standards and misconduct due to the commission of a serious offense.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960313 with a 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).

Issues 1 and 2:  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.  The Applicant’s offenses were properly processed in accordance with  the UCMJ and service regulations.  His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for violation of the UCMJ, Article 86 – unauthorized absence on five separate occasions, violation of Article 92 – violate a lawful order on five separate occasions and failure to meet physical fitness requirements thus substantiating the misconduct.  Thus, the Board finds that the Reason for Discharge reflects the misconduct and no other narrative reason for separation could more clearly describe why the Applicant was discharged.  Additionally, 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 short of that required for an upgrade of his characterization of service to honorable.  

Item 3:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   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 or any other evidence related to the Applicant’s 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 9, effective 
22 Jul 94 until 02 Oct 96, 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