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

 
,ex-HA, USN
Docket No. ND03-01050

Applicant’s Request

The application for discharge review was received on 20030530.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record 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 20040423.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear Sir or Madam:

I was discharged from active duty in the U.S. Navy on or about 16 Aug 1995 from VFA-87 with a RE-4 reenlistment code. At my point of separation, I had the rank of E-2 as a Hospital Corpsman. Prior to that, I was an E-4. The particulars of my 2 Captain’s Mast are as follows: First was 2 counts of dereliction of duty. The first count of that was not having my dental records on the shelves in the Dental Department when my CMC went down to get an exam. In my defense, I have to stat that we were aboard ship for our 95 Med cruise aboard the U.S. S. Theodore Roosevelt (CVN 71) for less than a week, and the Dental Department had scheduled times and dates for those of us in squadrons to come to file our records, and my time had not yet arrived. The Second count of Dereliction of duty was for not reporting to my CMC Squadron personnel who were seen in medial that day. If I remember correctly, Navmed instructions state that Personnel are not REQUIRED to relay that information, but it can be done as a courtesy to the CMC. And with my change to night shift, it is sometimes extremely hard to find him onboard. For that I was given reduction of Rate and ½ pay for 2 months. My second trip to Captains mast was for failure to appear in work station at time ordered and falsifying an official document. For that I was sent to the C.O. of the ship.  The count of failure to appear was dismissed by the Captain, as it was unclear if someone was or was not sent to wake me, as the meeting was called by Lt. M_ H_ at 11:00 that day to give out information that the lead Squadron Corpsman had already provided to us. The second count, the count of falsifying an official document, as was noted during my Captains mast, was for one wrong number on a squadron members 5 year physical. I had transcribed an eye exam given on shore less than 2 months earlier, due to the squadron member having just gotten off a 10 hour shift on the flight deck, as is, or was, permissible by NavMed instructions. Due to the Doctors writing, I transcribed a 20/70 eyesight in one eye as 20/20. The mistake was caught by the doctor and corrected, as is the reason we have that system of checks and balances and why everything is reviewed. At that mast I received a reduction of rate and 45 days restriction.

I feel my discharge from the Navy to be unjust in the particulars that my discharge was never ordered at either of my Masts. My squadron decided to separate me. Prior to my separation and even my masts, I was harassed by numerous Squadron personnel, Officer and Enlisted alike, on my religious beliefs. I was accused of being a Satanist, and as many times as I set those rumors to rest, a new one seemed to start. I was probably not the best Corpsman that squadron has had, nor was I the worst. I always passed inspection on my duties, on my records, more often than not with high marks.  I was always equipped to deal with minor emergencies in the barracks and at the Squadron command. I always had the squadron medially prepared for cruise and detachments. I often smoothed the way between the different departments within the medical department, making appointments for people from the squadron who asked me to do so. After my second Mast, I was removed from my work station in Medical where I worked the ACC at night with an Independent Duty Corpsman for emergencies that could not wait for sick call, and re-assigned to Damage Control, where I spent 2 1/2 months waiting for my discharge to come through. It took over a month to send out the paperwork, and I saw 1 other from my squadron, and 3 others from other squadrons and ships crew leave before me.
I realize that is has been more than 3 years since this has occurred, but I hope that the board will consider my application for the change of my discharge status. I am applying for this, first, because of recent activities in the world, I have often considered re-enlistment, but I can not as of yet, due to my RE-4 code. Second, so I would finally have access to the records of the training I received during active duty, as they do apply to credit for college where I plan to peruse my medical career.

Sincerely
	(Applicant’s Signature)
M_ A_ T_, Jr.

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)	910710 - 920617	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920618		Date of Discharge:  950804

Length of Service (years, months, days):

	Active:    03  01  17
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  84

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.15 (4)	Behavior:  3.36 (5)		OTA:  3.36

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, SASM(wb*), SSDR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

950401:	NJP for violation of UCMJ, Article 92: Dereliction of duty.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

950417:	Punishment of reduction in rate to HN and forfeiture of $200.00 pay per month for 2 months suspended at CO’s NJP of 950401 vacated this date due to continued misconduct.

950420:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 92, Dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950425:	NJP for violation of UCMJ, Article 107: False official statement on or about 950406.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 40 days, reduction to E-2.  No indication of appeal in the record.

950428:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.

950430:	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 submit statements in own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation.

950509:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

950601:	BUPERS 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 19950804 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Applicant contends that his discharge was unjust since it “was never ordered at either of my masts.”  For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP per regulation.  Accordingly relief on this basis is not warranted. 

A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

Concerning a change in reenlistment code, 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.  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 only during the processing of a formal application for enlistment through a recruiter.  Furthermore, it is the Applicant’s responsibility to obtain any training records while on active duty which may benefit him in further education.

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 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