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

ex-ITSN, USN
Docket No. ND03-01431 

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 20040712.  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.  “I C_ L_ W_ (Applicant) respectfully request an upgrade to my second discharge so to various problems.  If the board look at my medical record, it will state that I began to go through alot of problems.  This was all caused by financial and family stress.  Both my wife and boys were in a different city.  Trying to support a family and further my career became stressful and overwhelming.  The constant struggle to make pay grade.  To finally achieve PO2/E-5, then lose it was alot to deal with, but even through all I did, the Navy was going to keep me.  My recruiter said my second discharge would not effect me but it did.  I’m currently working on a degree in computers Bachelors in Information Technology, Due to the three years 2 mos.  I served in the Navy for my second tour, my other than honorable discharge took time away from me furthering my education.  I currently have an Associates degree and I would like to use the remaining 3 years and 2 months to finish up my BIT in computers, plus I would respectfully request my discharge be upgraded to discharge under honorable conditions (General).  Thank you.

Respectfully yours, C_ L_ W_ (Applicant) US Navy (veteran)”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881208 - 890822	COG
	Active:   USN 			890823 - 930822	HON
	Inactive: USNR		930823 - 961207	HON

Period of Service Under Review:

Date of Enlistment:  970107		Date of Discharge:  000224

Length of Service (years, months, days):

	Active:    03  01  18
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  IT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.00 (3)		OTA:  3.19

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), AFEM (2), NDSM, GCM, Flag Letter of Commendation, BER (2)

Days of Unauthorized Absence:  None

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:

000120:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 128: Assault.  No further information found in service record.
	Award: Forfeiture of $618 per month for 2 months, restriction and extra duty for 45 days, reduction to ITSN, administrative separation.  No indication of appeal in the record.

000224:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority:  NAVMILPERSMAN, Article 1910-142.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000224 under other than honorable conditions for misconduct due to commission of a serious offense (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of 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 family 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) 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant 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 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