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

  

ex-DKSA, USN
Docket No. ND04-00429

Applicant’s Request

The application for discharge review was received on 20040121.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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.  “An upgrade or change is requested because my discharged was not based on my performance in the service.  My discharged was based on my personal check bounced.”

Documentation

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

Sailor of the Quarter Nomination from ENS G_ M_ M_, SC, dated March 16, 1992
Administrative Remarks, during the period May 26, 1992 to June 05, 1992
Administrative Remarks, during the period May 11, 1992 to May 22, 1992
Administrative Remarks, during the period April 27, 199 to May 08, 1992
Reference of character from PN1 (SW) F_, dated October 26, 1994
Reference of character from PNC (SW) T_, dated October 27, 1994
Citation for Exemplary Performance (June 15, 1993 – December 15, 1993)
Citation for Outstanding Performance (November 1991 to April 1992)
Copy of DD Form 214 (Service 2)
Enlisted Qualifications History (9 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			901204 - 940324	HON

Period of Service Under Review:

Date of Enlistment:  940325		Date of Discharge:  950915

Length of Service (years, months, days):

	Active:    01  05 21
	Inactive:  None

Age at Entry:  24			Years Contracted:  3

Education Level:  12			AFQT:  33

Highest Rate:  DK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR (2)

Days of Unauthorized Absence:  2

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:

940325:	Member reenlisted for three years.

940628:	Retention Warning:  Advised of deficiency (Financial irresponsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
941004:	Unauthorized  absence since 0730.  Intentions unkown.

941018:	CPO Disciplinary Review Board recommended that the case be given to OICs Mast and that the member be released from active duty under an Administrative Separation for the commission of a serious offense, furthermore; the discharge will be general under honorable conditions.

941104:	NJP for violation of UCMJ, Article 86:  Unauthorized absence; violation of UCMJ Article 92: Dereliction in the performance of duties; violation of UCMJ Article 123A (18 Specs): Making, drawing, or uttering checks, drafts or order without sufficient funds on 940519 for the amount of ($100.00), 940520 ($100.00), 940521 ($100.00), 940521 ($450.00), 940522 ($100.00), 940319 ($150.00), 940320 ($150.00), 940319 ($150.00), 940320 ($150.00), 940321 ($150.00), 940321 ($150.00), 940321 ($50.00), 940322 ($150.00), 940323 ($150.00), 940322 ($45.40), 940325 ($150.00), 940326 ($150.00), 940404 ($700.00); violation of UCMJ Article 134 (4 Specs): Debt, dishonorably failed to pay just debts to SN S_ for $464.00 on 940815, to LN2 R_ for $500.00 on 940831, to FC1 P_ for $60.00 on 940930.
	Award:  Restriction for 60 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

941104:	 Unauthorized absence since 1200.  Intentions unknown.

950404:	Unauthorized absence since 0800.  Intentions unknown.

950404:	Reduction to E-3 awarded at CO’s NJP of 941104 vacated this date due to continued misconduct.

950406:	Surrendered onboard as of 1030.

950509:	NJP for violation of UCMJ, Article 86 (2 Specs)  
(1 Spec):  On or about 0730, 950404, absent himself from place of duty and remain so absent until on or about 0700, 950405.
(2 Spec):  On or about 0730, 950405 without authority, absent himself from his place of duty and did remain so absent until on or about 1030, 950406; violation of UCMJ Article 92: Disobeying a lawful order on or about 1300, 950331; violation of UCMJ Article 123a: On about 950212 defrauded Reno Check Cashing Service by writing a check for $820.00 knowingly he did not have sufficient funds.
	Award:  Forfeiture of $478.00 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

950523:	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 pattern of misconduct during current enlistment.

950524:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950711:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and by unanimous vote, had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950718:	Letter of Deficiency submitted by Applicant’s counsel.

950731:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct during current enlistment.

950830:	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 19950915 under other than 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 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:  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an 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.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions to include violating UCMJ, Articles 86, 92 and 123a, thus substantiating the misconduct for which he was separated.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  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 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 9, effective 
22 Jul 94 until 02 Oct 96, 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