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

 ex-AR, USN
Docket No. ND04-00405

Applicant’s Request

The application for discharge review was received on 20040115.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “MY NAME IS S_ C_ (Applicant) AND I SERVED IN THE NAVY FROM NOV. 89 TO MAY 92.  AT THE TIME, I WAS TRYING TO HELP SUPPORT MY MOTHER, WHICH WAS A SINGLE WIDOW WITH A 5 YEAR OLD SON AND A FIFTEEN YEAR OLD DAUGHTER TO RAISE, WHILE TRYING TO ALSO HAVE A LIFE OF MY OWN.  AFTER TWO YEARS OF STRUGGLING.  I FELT IT WOULD BE BEST IF I QUIT THE NAVY TO FIND A BETTER PAYING JOB.  MISSING SHIPS MOVEMENTS / UA WAS MY ONLY OPTION TO DO THIS BECAUSE I DON’T BELIEVE IN DRUG USE OR SELF INJURY.  I TURNED MYSELF IN AND REQUESTED OUT.  EVEN THOUGH I HAD ENOUGH LEAVE ON THE BOOKS TO COVER MY ABSENCE AND THE OPTION TO USE IT.  I HAD NO IDEA HOW HARD IT WOULD BE TO GET A GOOD CAREER IN THE FURTURE BECAUSE OF MY DISCHARGE, NO MATTER HOW HARD I TRY.  I HAVE BEEN CONSTANTLY EMPLOYED SINCE MY DISCHARGE, 2 JOBS OVER 5 YEAR EACH AND 2 JOBS CONCURRENT FOR 1 YEAR.  IN 1997, I GRADUATED SECOND IN MY CLASS OF THE POLICE ACADEMY AND PASSED THE STATE TEST ON MY FIRST TRY, BUT I AM NOT ABLE TO MAKE USE OF MY POTENTIAL BECAUSE OF MY DISCHARGE.  I HAVE BEEN MARRIED FOR NINE YEARS, HAVE TWO CHILDREN, AND WANT TO PROVIDE THE BEST FOR THEM.”

Documentation

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

Copy of DD Form 214
Reference of character from E_ R_, KB&R Management, dated November 25, 2003
Reference of character from B_ K_ N_, undated
Reference of character from V_ J_ W_, Maintenance Supervisor City of Sherman, dated November 25, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891109 - 891128	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  891129		Date of Discharge:  920513

Length of Service (years, months, days):

	Active:    02  03  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.55 (4)	Behavior:  2.55 (4)		OTA:  2.55

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, SSDR, SASM W/2 BRONZE STARS, NDSM, KLM

Days of Unauthorized Absence:  31

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900214:	NJP for violation of UCMJ, Article 134:  Drunkenness on 900206 at 2145.
	Award:  Forfeiture of $300.00 per month for 1 month.

900214:	Retention Warning:  Advised of deficiency (Disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920224:	Member went UA from USS SARATOGA.

920319:	Member was apprehended by Jacksonville Sheriff’s office at 2245 on 920319.

920319:	Member returned to military control at 2300 this date.

920320:	Member UA from USS SARATOGA on this date.

920327:	Member surrendered onboard Naval Station Mayport, FL at 0215 on 920327.

920327:	Member returned to USS SARATOGA this date for duty.

920330:	Summary Court-Martial:
	Charge I: violation of the UCMJ, Article 86 (2 Specs):
	Specification 1: UA from 920108 to 920321.
	Specification 2: UA from 920320 to 920327.
	Charge II: violation of the UCMJ, Article 87 (2 Specs):
	Specification 1: Miss ship’s movement on 920224.
	Specification 2: Miss ship’s movement on 920324.
	Charge III: violation of the UCMJ, Article 134
	Specification 1: Broke restriction on 920320.
	Finding: to Charge I, II and III and the specification thereunder, guilty.
	Sentence: Forfeiture of $518.00 per month for 1 month, 3 days bread and water, 24 days confinement, reduction to E-1.  No indication of appeal in the record.

920330:	To confinement.

920331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his period of unauthorized absence greater than 30 days, and by his two specifications of missing ship’s movement.

920401:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920421:	Member released from confinement and returned to full duty.

920505:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920513:	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 19920513 under other than honorable conditions for misconduct due to the 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.  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.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) and a special court-martial for violations of Articles 86, 87 and 92 of the UCMJ thus substantiating the misconduct.  Relief denied.

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.  

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, 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.   The Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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