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

ex-MMFR, USN
Docket No. ND03-01425 

Applicant’s Request

The application for discharge review was received on 20030903.  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 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:  GENRAL (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.  “My Name is T_ C_ (Applicant).  I went into the Navy at 18 years old.  When I was discharged, I was having problems with my kidneys.  I was also having some personal issues.  I am sorry that I was not able to finish my term.  I was doing good on all my Qualifications on my sub.  I had a medical appointment and I told my division Petty Officer about it.  I did not show up in the morning for muster.”  And they classified me as being U/A.  Medical had records of me being there but when I went to Mast, My Capton told me that is was my responsibility to tell my division officer.  I am asking for you to look past what I did when I was younger.  I am trying to get a job for a federal prison for maintinace.  I would be very thankful if you could do this for my actions when I was younger.

Thank you
Tracy K Cannon

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)	960129 - 960902	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960903		Date of Discharge:  990226

Length of Service (years, months, days):

	Active:    02  05  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NMPM, NMRM

Days of Unauthorized Absence:  None

*No marks found in Applicant’s service record.

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:

980408:	Retention Warning:  Advised of deficiency (failed to utilize your time properly and commit to ensuring properly time for check-out, on 980306, you failed to wait for the COB and failed to notify anyone that you were departing; on 980309, you had given false information about your special liberty to the SSSU; failure to report to work on time; and failure to report or contact your LPO to let him know reasons why you could not report for delinquent study) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980903:	NJP for violation of UCMJ, Article 86:  Fail to arrive at the time prescribed to his appointed place of duty, after expiration of liberty, violation of UCMJ Article 92:  Having knowledge of a lawful order issued by on 980408 by LCDR C_ (page 13), to report to work on time each day and to report qualification status to your LPO daily, orders which were his duty to obey, did on or about 980807 arrive to work 2 hours 35 minutes late and did not report status of qualification to LPO for week of 980803 until requested on 980806.
	Award:  Forfeiture of $463.00 per month for 2 months, reduction to MMFR.  No indication of appeal in the record.

980930:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980930:	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.

990216:	COMSUBGRU TWO directed the Applicant's discharge General (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990226 General (under honorable conditions) for misconduct due to commission of a serious offense (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, 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 health 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) for violating UCMJ, articles 86 and 92, thus substantiating the misconduct.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.     

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