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

ex-SWCA, USN 
Docket No. ND03-01429

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 general/under honorable conditions.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

The NDRB did note administrative error(s) on the original DD Form 214.  Block 25, Separation Authority, should read:  "NAVMILPERSMAN, Article 1910-142" vice "MILPERSMAN 1910-140."  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting a change in my discharge status from other than honorable to a discharge of general under honorable conditions.

My goal I to attend college while obtaining a ood job to support myself.

In the past year I have had difficults adjusting to civilian life. I've been living with friends and family and I feel like a burden.  I am having difficulty with obtaining even an entry level job.

I am hoping you wil grant my request that my discharge be upgraded to general under honorable conditions so I can get a good job, support myself and not depend on my friends and family for a place to stay, for food, etc.

Thank you for reviewing my records.”

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	001109 - 010101	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010102			Date of Discharge:  020702

Length of Service (years, months, days):

	Active:    01  06  01
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  8				AFQT:  44

Highest Rate:  SWCA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF* 	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

011024:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to appointed place of duty on 0700-0900, 010923, (2) Failure to go at the time prescribed on 0700-0730, 010927.
	Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 30 days, reduction to SWCR.  Reduction suspended for 6 months.  No indication of appeal in the record.

011024:	Retention Warning: Advised of deficiency (Failure to go to appointed place of duty on 010923 and 010927.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020405:	Charge Sheet: Violation of the UCMJ, Article 120: Rape Seaman Recruit on 011123.  Violation of the UCMJ, Article 134: Commit an indecent assault upon Seaman by removing his boxer shorts, entering her bed naked, removing her pants, and touching her vagina while she was sleeping in her bed, with the intent to gratify his sexual desires on 011123.

020507	Record of Report and Disposition of Offenses.  Violation of the UCMJ, Article 134: Catch All.  Violation of the UCMJ, Article 117: Provoking speech and gestures.

020523:	Investigation Officer's Report.  “Due to the seriousness of the charges, if the convening authority does choose to proceed, the charges should be disposed of at a general court-martial.”

020603:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020612:	Applicant advised of rights and having consulted 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.

020617:	Commanding Officer 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 20020702 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:  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violating UCMJ, article 86 and charges for violating UCMJ, articles 120 and 134 thus substantiating the misconduct.  Additionally, 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.  

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.   

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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