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

ex-MMFN, USN
Docket No. ND03-01192

Applicant’s Request

The application for discharge review was received on 20030707.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing review before the Board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 20040916.  The Applicant was granted until 20040921 to submit additional supporting documents.  The Board received the Applicant’s supporting documents on 20040920 and reconvened the Board on 20040921.  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 /Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS) at time of the Board superseded all previously submitted issues by the Applicant:

1.  “Clemency for an upgraded discharge to Under Honorable.”
Documentation

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

Copy of DD Form 214
Copy of City and County of Philadelphia Election Certificate
Copy of Trolley Staff Certificate 
Letter of Congratulation from Congressman J_ F. F_ 
Copy of Letter of Appreciation from CO
Copy of Certificate of Completion (Machinist’s Mate Class “A” Course)
Copy of Criminal Record Check
Copy of Employment Verification
Copy of Brochure of Appreciation
Copy of District of Philadelphia Route Operation Report
Copy of Community College of Philadelphia Transcript
Copy of Deed

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871029 - 880131	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  880201		Date of Discharge:  900910

Length of Service (years, months, days):

	Active:    02  07  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  28

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.93 (3)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900430:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 91: (2 Specifications), Disrespect towards a Petty Officer and a Chief Petty Officer, violation of UCMJ, Article 128: Assault, violation of UCMJ Article 134: Communicating a Threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [Extracted from CO’s message].

900430:	NJP for violation of UCMJ, Article 91: (2 Specifications), Disrespect towards a Petty Officer and a Chief Petty Officer, violation of UCMJ, Article 128: Assault, violation of UCMJ Article 134: Communicating a Threat.
	Award:  Forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days (suspended for 6 months), reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

900518:	Convicted by the Circuit Court of the City of Norfolk for Forgery, Uttering, and Attempted Grand Larceny.
	Sentenced: (900706) 2 yrs suspended jail (Felony Trial Ordered 900518).

900701:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

900706:	Applicant advised of his rights including the right to consult with counsel certified under UCMJ Article 27B, and refused to sign or submit his statement of awareness.  He requested no rights.

900717:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense. 

900720:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950123:	NDRB documentary record review Docket Number ND94-01031 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900910 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 nonjudicial punishment (NJP) for violations of articles 91, 128 and 134 of the UCMJ.  In addition, the Applicant was convicted by the Circuit Court of the City of Norfolk for forgery, uttering, and attempted grand larceny.  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.  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 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.  The board does commend the Applicant’s work within his community and encourages him to continuing mentoring.  The evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, no relief will be granted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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