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

ex-MMFA, USN 
Docket No. ND03-01367

Applicant’s Request

The application for discharge review was received on 20030815.  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.

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 received 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 – 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.  I am respectfully requesting an upgrade in my type of discharge from O.T.H to honorable status for the following reasons: 1: The main reason is because I very much want to go back into the Armed Forces.  I find myself at a cros roads in my life and the one thing that I think about everyday is the mistakes that I made when I was younger and in the navy.  I was a knucklehead and made some very unwise choices I very much desire/want the opportunity to “Right The Wrong”.  Especially with all that has happened in out country the past two years, I feel an over-whelming desire to contribute.  I really want back in the military! I want to give back something rather than take.  I am hoping that the Board will show mercy upon me.  Up until that last year in the Navy, I was never in trouble.  I also had very good evals.  I have had to live with my poor choices for 10 years now.  I am not proud of myself.  I only want I chance to make this right.  Please allow me that chance.”

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)		890425 - 890502	COG
	Inactive: USNR-R (ACDUTRA)	890503 - 891128	HON
	Active:   USN				None

Period of Service Under Review:

Date of Enlistment:  910201		Date of Discharge:  930409

Length of Service (years, months, days):

	Active:    02  02  09
	Inactive:  None

Age at Entry:  20			Years Contracted:  2

Education Level:  11			AFQT:  68

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.33 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  74

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:

910201:	Reenlisted at NAVSUBSCOL, GROTON CT for 2 years.

920812:	Retention Warning:  Advised of deficiency (On July 23 1992 was absent without authority), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920812:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $125.00 pay per month for 2 months, reduction to E-3 (suspended for 6 months), oral admonition.  No indication of appeal in the record.	

921019:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 921016 having been an unauthorized absentee since 0000, 920916 from USS BATON ROUGE (SSN-689).

921128:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 921124 (2347) at Las Vegas, NV.  Returned to military control 921125 (1040).  ORIG delivered to SNM to USS BATON ROUGE on 921128.

921201:	Punishment of RIR to MMFN suspended at CO’s NJP of 920814 vacated this date due to continued misconduct.

921202:	NJP for violation of UCMJ, Article 86: Unauthorized absence 920916 to 921128 (74 days/A), violation of UCMJ Article 92: Dereliction of duty, violation of UCMJ Article 87: Missing movement.
	Award:  Oral Reprimand, forfeiture of $440.00 pay per month for 2 months, restriction to ship for 45 days, reduction to E-2.  No indication of appeal in the record.

930203:	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 your service record.

930205:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930216:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930301:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930323:	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 19930409 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 youth and immaturity 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) for violating Articles 82, 87, and 92 of the UCMJ, thus substantiating the misconduct.  Relief denied.  

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.  

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 5, effective 
05 Mar 93 until 21 Jul 94, 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