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

      ex-PNSN (AW) USNR (TAR)
Docket No. ND04-00018

Applicant’s Request

The application for discharge review was received on 20031001.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “There were no basis for the discharge characterization of OTH.  The discharge action itself was the result of an NJP at which only a “suspended” sentence was imposed.-  I have no other record of disciplinary action-in fact I had a perfect and impeccable military performance record that included four Navy Achievment and two Navy Commendation and a Good Conduct Medals and various other awards.-.”

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)	830323 - 830828	COG
	Active:   USN			830829 - 900228	HON
	Inactive: USNR-R		900601 - 901130	COG

Period of Service Under Review:

Date of Enlistment:  901201*	Date of Discharge:  940325

Length of Service (years, months, days):

	Active:    02  03  24
	Inactive:  None

Age at Entry:  34			Years Contracted:  4

Education Level:  12			AFQT:  59

Highest Rate:  PN1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (6)	Behavior:  3.66 (6)		OTA:  3.77

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC (2), GCM, AFEM, NEM, SSDR, NAM (2), N&MOSR (2), NDSM, AWBI

Days of Unauthorized Absence:  None

*Cannot be verified – reenlistment contract not in Service Record.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901201:	Reenlisted for a term of four years.  [EXTRACTED FROM CO, N&MCRC, Tacoma, WA, letter of 3 March 1994.
931202:	NJP for violation of UCMJ, Article 107: False official statements or official documents.
	Award: Forfeiture of $400 per month for 2 months, reduction to PN2.  Suspended for 6 months.  No indication of appeal in the record.

931206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931216:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940221:	Applicant’s statement.

940303:	Commanding Officer recommended discharge honorable by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  Petty Officer D_ (Applicant) is being processed for separation due to misconduct.  Specifically he submitted a false official transfer evaluation on himself and signed my name to it.  I did talk to his detailer about his transfer to PSD Pearl Harbor but the more I thought about it and after talking to my superior I decided that I didn’t want to pass someone on to another command who couldn’t be trusted.
	I am recommending Petty Officer D_ (Applicant) for an Honorable Discharge based on his past performance.  His service record has been exceptional with no evidence of disciplinary problems other than NJP on 2 Dec 93.  However, due to the seriousness of the offense and his position as PN1, position of trust and confidence, I can get not recommend him for either continued military service in the Naval Reserve or for involuntary separation pay.

940310:	Applicant waived Administrative Discharge Board.

940315:	BUPERS 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 19940325 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and F).

Issue 1.  The Applicant states the he had “no other record of disciplinary action—in fact I had a perfect and impeccable military performance record.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violation of Article 107 of the UCMJ.  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 consider his discharge proper and equitable.  Relief denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 nonjudicial punishment proceedings for his violation of Article 107 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted

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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statements, if adjudged at a Special or General Court-Martial.

C.  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.

D.  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.

E.  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