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

ex-JO3, USN
Docket No. ND03-01137 

Applicant’s Request

The application for discharge review was received on 20030619.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed Private Representation as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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: GENERAL UNDER 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.  The legal action against me was inequitable (See Applicant’s explanation in Supporting Documents).”

“2.  A climate of command hostility towards me generated the desire for ferocious punishment (See Applicant’s explanation in Supporting Documents).”

“3.  My outstanding work for the command was ignored in my official evaluation.  Examples of my work that was not recorded in any evaluation include the following: (See Applicant’s explanation in Supporting Documents).”

“4.  My continued service to my city and country and my life achievements are deserving of respect by my country.  Since my discharge, I have accomplished the following: (See Applicant’s explanation in Supporting Documents).”

Documentation

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

Copy of DD Form 214
Copy of Commanding Officer’s Administrative Recommendation
Copy of Court Memorandum
Copy of Evaluation Report & Counseling Records (4 pages)
Copy of Notification Procedures Letter (2 pages)
Copy of Acknowledgement of Rights (1 page)
Copy of Preliminary Inquiry for JO2 L___ (2 pages)
Copy of Commanding Officer’s Administrative Recommendation (2 pages)
Copy of Reply to Inquiry
Request for Military Records 
Listing of Explanations of Issues (11 pages)
Listing of Post Service Accomplishment.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901115 - 910227	COG
	Active:   USN 			910228 - 960222	HON

Period of Service Under Review:

Date of Enlistment:  960223		Date of Discharge:  980131

Length of Service (years, months, days):

	Active:    01  11  08
	Inactive:  None

Age at Entry:  33			Years Contracted:  2 (1 month extension)

Education Level:  12			AFQT:  79

Highest Rate:  JO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.00 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR(6), GCM,  NAM, MUC

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

960223:	Reenlisted at NAVANTARCTICSUPPU CHRISTCHURCH NZ for 2 years.

961108:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  10 days extra military instruction.  No indication of appeal in the record.

971113:	Warning issued due to demonstrated poor judgement in the handling of a local news story.   JO2 L____ has been unable to make a distinction between his personal view and his Public Affair duties, and voiced the former in a major foreign newspaper while acting in an official capacity and appearing in uniform.  As a result, JO2 L___ has had his duties modified to restrict his contact with the media, to include telephonic and electronic means.  Further editorial comment and failure to use the Chain of Command will result in Administrative and/or Legal action as appropriate.

971219:	NJP for violation of UCMJ, Article 109: Damage to non-military property, willfully and wrongfully damage, by scratching with a key, a personally owned vehicle, the property of CDR J___ W. S___, USN, the amount of damage being less than $100.
	Award:  Forfeiture of $697.35 pay per month for 2 months, reduction to E-4.  No indication of appeal in the record.

971219:	Applicant notified of intended recommendation for discharge with a characterization of general under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your nonjudical punishment of 971219 for violation of the UCMJ, Article 109, for willful damage to non-military property.

971219:	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 and the right to obtain copies of the documents used to support the basis for the separation.

980129:	Commanding Officer recommended discharge with a characterization of general under 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 19980131 with a characterization of 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 1-3:  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 waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1998.  His service record is marred by award of nonjudicial punishment (NJP) for damage to non-military property.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  Relief denied.

Issue 4:  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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 18, effective 
12 Dec 97 until 29 March 2000, 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