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

ex-GSM3, USN
Docket No. ND03-01277

Applicant’s Request

The application for discharge review was received on 20030724.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  Honorable discharge dated 28th June 1990.  Navy Achievement Medal Date 17 April 1990.  Navy Recruitment Command Louisville Ky.  Letter of Commendation Navy Recruiting Command date 8 Sept, 1988.  Letter of Commendation Navy Recruiting Command dated 7 Nov, 1988.  Certificate of Achievement dated 27 Feb 1987 Navy Recruiting Command.  Letter of Commendation dated 23 July 1987 Navy Recruiting Command.  Recruiting Excellence Award date 13 July 1987.  Recruiter of the Month dated July 13, 1987.  Recruiting Excellence Award date June 1987. Recruiting Excellence Award date July 1988.  Letter of Appreciation dated June 3, 1986 from Commanding Officer USS Hector (AR7).  Recruiting Excellence Award date December 1986.  Good Conduct Award Nov 5, 1985 1st Award.  There should have been a 2nd Good Conduct Metal dated Nov 5, 1989 or 1990.  Certificate of Commendation dated June 17, 1983 from Commanding Officer USS FRANK CABLE (AS-40).  Skeleton Crew USS JONAS INGRAM (DD-943) Decommissioned 1983.  It is my belief than and now that I was force out of the Navy by certain members of the Command aboard USS JARRETT (FFG-33),  You don’t go from a 4.0 sailor to a zero in 2 yrs

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERAN:

2.  “After a review of the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidenced assembled for review, we continue to note the contention of the appellant in his request for discharge upgrade of his current General Under Honorable Conditions to that of Honorable.

The FSM served on active duty from May 5, 1980 to March 2, 1992 at which time he was discharged due to Misconduct-Commission of Serious Offense.

The FSM, based on submittal of the application, request a record review for an upgrade of the current General discharge, it his belief that he was forced out of the Navy by certain members of the Command aboard the USS Jarrett (FFG-33), because you don’t go from a 4.0 sailor to a zero in two years without outside influence.

In attest to his performance, the appellant has requested review of his recruiting excellent awards; good conduct medals, certificate of commendation and achievement, letters of commendation and finally his Honorable discharge (s) for his service from May 5, 1980 to April 4, 1984 and April 5, 1984 to June 28, 1990.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Documentation

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

Statements in Support of Claim (2)
Cover Letter from Disabled American Veterans dated August 7, 2003 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	800311 - 800504	COG
	Active:   USN			800505 - 840404	HON
	Active:   USN			840405 – 900628	HON 

Period of Service Under Review:

Date of Enlistment:  900629		Date of Discharge:  920302

Length of Service (years, months, days):

	Active:    01  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  50

Highest Rate:  GSM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.70 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA(2), CAR, SSDR(3), BATTLE”E”, NUC, NDSM, NRSR, MUC, SASM, KLM, NAM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900629:	Reenlisted at SSC Great Lakes, IL for 6 years.

910419:	Retention Warning:  Advised of deficiency (As per letter of Instruction issued by the Commanding Officer on 910419), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910805:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
	Award:  Reduction to E-5.  No indication of appeal in the record.

910909:	Retention Warning:  Advised of deficiency (You were found guilty at CO’s NJP for violating UCMJ, Article 92, failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
911002:	NJP for violation of UCMJ, Article 108: Destruction of government property, violation of UCMJ Article 134: Disorderly conduct.
	Award:  Forfeiture of $668.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

911118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of personality disorder, as evidenced by a psychiatric evaluation conducted on 910919 by CDR D. A. B___, MC, USN of Mental Health Department, Naval Hospital, Long Beach, and by reason of misconduct due to the commission of a serious offense as evidenced by non-judicial punishment for destruction of government property and disorderly conduct

911120:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920106:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct and found that the members personality disorder is not sufficient for discharge, that the misconduct warranted separation, and recommended discharge by reason of misconduct due to minor disciplinary infractions with a characterization of general.

920129:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of personality disorder, as evidenced by a psychiatric evaluation conducted on 910919 by CDR D. A. B___, MC, USN of Mental Health Department, Naval Hospital, Long Beach, and by reason of misconduct due to the commission of a serious offense as evidenced by non-judicial punishment for destruction of government property and disorderly conduct, and by reason of misconduct due to minor disciplinary infractions as evidenced by three minor violations of the UCMJ.

920205:	Applicant advised of his rights and having elected 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, the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened, the right to representation at the Administrative Board by qualified counsel and the right to five working days to respond to the Notification Procedures Proposed Action.

920206:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

920225:	BUPERS directed the Applicant's discharge under honorable conditions (general) 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 19920302 under honorable conditions (general) 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 available 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.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of nonjudicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ, Article 108: Destruction of government property, and violation of UCMJ Article 134: Disorderly conduct.  An upgrade to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Issue 2.  To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

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), effective 15 Aug 91 until 
04 Mar 93, 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