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

ex-AO3, USN
  Docket No. ND04-00001

Applicant’s Request

The application for discharge review was received on 20030926.  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 American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s representative (American Legion):

1.  Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
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In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

An administrative error is noted on DD Form 214.  This former member entered active duty 850820 served honorably, reenlisted 900725 served honorably, reenlisted 940722.  Per BUPERSINST 1900.8, Block 18 should include “Continuous Honorable Active Service from 850820 until 940721” and the information in Block 12 should be corrected.

Review of the service record reflects that this Applicant had pervious honorable enlistments, maintained above average performance and conduct markings and was issued the NDSM, SSDR, NPMR, AFSM, AFEM, 3 GCM, MUC and NER.  He was awarded NJP on 980527 for VUCMJ, Arts. 86, 107, 125.  His due process included an ADB which convened 980609 and determined that he committed homosexual misconduct and a serious offense, and recommended separation with GD. His CO concurred and he was discharged General (Under Honorable Conditions) due to misconduct as authorized by NAVMILPERSMAN, Art. 1910-142.

This Applicant has not submitted any issues for review.  He has submitted documentation indicating his employment with the Defense Commissary Agency and a police report for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.

Documentation

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

Letter from Applicant
Copy of Civilian Performance Evaluation 
Copies of DD Form 214 (6)
Copies of Notification of Personnel Actions (7)
Copy of Leave and Earning Statement/Representation Listing
Copy of Police Record Check

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			850820 - 900724	HON
Active:   USN 			900725 - 940721	HON

Period of Service Under Review:

Date of Enlistment:  940722		Date of Discharge:  981009

Length of Service (years, months, days):

	Active:    04  02  17
	Inactive:  00  01  24

Age at Entry:  29			Years Contracted:  6

Education Level:  12			AFQT:  28

Highest Rate:  AO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.80 (2)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(2), PMR, AFSM, AFEM, GCM, MUC, NAVEY”E”

Days of Unauthorized Absence:  2

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:

940722:	Reenlisted on board USS ENTERPRISE (CVN-65) for 6 years.

941217:	UA from USS ENTERPRISE (CVN-65) at Norfolk Naval Station Virginia.

941219:	Returned onboard USS ENTERPRISE (CVN-65) at Norfolk Naval Station Virginia.

980527:	NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 107: False official statement; violation of UCMJ Article 125: Wrongfully commit sodomy with an un-named service member.
	Award:  Forfeiture of $878.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-4.  No indication of appeal in the record.

980527:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct as evidenced by member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act (s).

980527:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980609:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and homosexual conduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

980912:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and homosexual conduct.

980918:	BUPERS 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 19981009 with a 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).

Issue 1.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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 nonjudicial punishment (NJP) on one occasion for violations of the Uniform Code of Military Justice (UCMJ) to include articles 86 and 107.   An upgrade to honorable would be 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. Relief is therefore 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