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

 
ex-FR, USNR
Docket No. ND03-01263

Applicant’s Request

The application for discharge review was received on 20030722.  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 a traveling panel.  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 (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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.  Please Sirs take into consideration the amount of time that I had remaining in my enlistment at that time I caught my wife with another man.  And I lost it, it was wrong now I am remarried and having a child and could use a upgrade please.”

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)	None
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  960708		Date of Discharge:  980714

Length of Service (years, months, days):

	Active:    01  11  07
	Inactive:  00  02  07

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  38

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE”E”, SSR, NMUC

Days of Unauthorized Absence:  30

*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:

960708:	Ordered to active duty for 36 months under the Fireman Apprenticeship program.

970728:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Petty Officer; violation of UCMJ Article 92: Failure to obey order or regulation; violation of UCMJ Article 92: Dereliction in the performance of his duties; violation of UCMJ Article 92: Failure to obey regulation.
	Award:  Forfeiture of $150.00 pay per month for 2 months, reduction to E-1.  No indication of appeal in the record.

980420:	NJP for violation of UCMJ, Article 111: Drunk driving, violation of UCMJ Article 134: Disorderly conduct, drunkenness.
	Award:  Correctional Custody Unit for 21 days.  No indication of appeal in the record.

980530:	Commenced UA from USS INGRAHAM (FFG-61), 0715.

980629:	Returned from Desertion, 0915.

980629:	NJP for violation of UCMJ, Article 85: Desertion; violation of UCMJ Article 85: Desertion with intent to shirk important services; violation of UCMJ Article 87: Missing movement (3 different times).
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

980701:	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 pattern of misconduct as evidenced by violations of UCMJ, Article 85, unauthorized absence for a period of more than 30 days; Article 87, missing ship’s movement; Article 91, insubordinate conduct towards a petty officer; Article 92, failure to obey order or regulation; Article 92, dereliction in the performance of his duties; Article 92, failure to obey regulation; Article 111, drunk driving; Article 134, disorderly conduct.

980701:	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.

980701:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct as evidenced by CO’s NJP held 980629, violations of UCMJ, Article 85, (Desertion w/intent to shirk important services).  Violation of UCMJ Article 87 (Missing movement) (three different occasions).  CO NJP held 980420, Violation of UCMJ; Article 111, (Drunk Driving), Violation of UCMJ Article 134 (Disorderly conduct/drunkenness).  CO’s NJP held 970728, Violation of UCMJ Article 91, (Insubordinate conduct towards a Petty Officer), Violation of UCMJ Article 92 (2 Specifications) (Failure to obey order or regulation), Violation of UCMJ Article 92, (Dereliction).

980706:	Commander, Naval Surface Group Pacific Northwest authorized 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 19980714 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:  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.  While he may feel that his marital problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the misconduct.  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.  

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 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