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

 
ex-OSSR, USN
Docket No. ND03-01506

Applicant’s Request

The application for discharge review was received on 20030924.  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 Veterans of Foreign Wars.

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: GENERAL (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 discharge was inequitable because it was based on one isolated incident in 30 months of service with no other adverse action.

Additional issues submitted by Applicant’s counsel/representative Veterans Of Foreign Wars:

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on March 24, 2004 and the following comments are hereby submitted:  We concur with the Applicant’s contention that his discharge be upgraded.

       We refer this case to the Board for their careful consideration and request the Applicant’s General Discharge be upgraded to honorable.

J_ A_ J_
Military Claims Consultant
Documentation

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

Copy of DD Form 214 (Member 1 and 4)
       Copy of DD Form 293
       Evaluation Report & Counseling Record (From 97Oct22 To 98Jan15)
       Rutherford Institute ltr of Oct 2, 1998 concerning Anthrax Vaccination

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960122 - 960129	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960130		Date of Discharge:  981125

Length of Service (years, months, days):

	Active:    02  09  26
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.0 (1)	Behavior:  4.0 (1)		OTA:  4.14

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, MUC, SSDR

Days of Unauthorized Absence:  None

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:

980703:	NJP for violation of UCMJ, Article 90:  Disobeying a lawful command from a superior commissioned Officer.
	Award:  Forfeiture of $568.00 per month for 2 months, restriction and extra duty for 60 days, reduction to OSSN.  No indication of appeal in the record.

980903:	NJP for violation of UCMJ, Article 86:  Fail to go to appointed place of duty on 980831 at 1100am to meet his scheduled appointment.
	Award:  Forfeiture of $519.00 per month for 2 months, restriction and extra duty for 60 days, reduction to E-2.  No indication of appeal in the record.

981102:	NJP for violation of UCMJ, Article 90:  Willfully disobeyed a superior commissioned Officer.
	Award:  Forfeiture of $463.00 per month for 2 months, restriction and extra duty for 60 days, reduction to E-1.  No indication of appeal in the record.

981109:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

981109:	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.

981111:	Commanding Officer, USS ABRAHAM LINCOLN recommended discharge general (under other than honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  OSSN H_ (Applicant) is incapable of adhering to the rules and regulations of the Navy and this command.  He is simply unwilling to conduct himself in a manner conducive to good order and discipline.  OSSN H_ (Applicant) has no potential for further naval service.  Per reference (a) and (b), I authorize that he be separated from the naval service by reason of misconduct due to commission of a serious offense, and that his discharge be characterized as general (under honorable conditions).

981111:	Commanding Officer, USS ABRAHAM LINCOLN, directed the Applicant's discharge general (under 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 19981125 general (under 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issues 1 & 2.   The Applicant states his discharge was based on one isolated incident with no other infractions.  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 non-judicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ) to include articles 86 and 90.  An upgrade to honorable is 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.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, a procedural 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.  Relief denied.

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), 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