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

ex-RPSN, USN  
Docket No. ND04-00430

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.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041014.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “ I made a mistake while on active duty.  Since that time I have sought to atone for the disservice that I rendered onto my self and my uniform.  I have successfully completed in the Army National Guard.  I have earned three degrees and am currently working on my Masters degree.  I have maintained a positive mindset and a productive contributory lifestyle in both my military career and my civilian life.
I believe that my mistake was a one time act of poor judgment, not something chronic or habitual to my character.  I still desire to serve my country in the United States Air Force.
This upgrade will reflect the conscientious effort that I have made toward righting the mistake that has prevented me from serving my nation in a fashion that best reflects my upbringing, my community and my personal integrity.  I am currently enlisted in the Air National Guard.
It is my hope that the evidence of progress and purpose that I have provided will show my respect and serious nature to reverse the blotch upon my character and my service.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.  (Both applications)

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

2.  “(Equity Issue)  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. _______________________________________________________________________

In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, 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:

Bachelor of Computer Information Systems degree, dated June 2002
Honorable Discharge from Army National Guard, dated June 23, 2003
Bachelor of Open Systems Technology, dated December 2001
Associate of Applied Science, dated June 1999
Student Undergraduate Academic Record, dated July 12, 2002
MPF Form 1
DD Form 4/1
Enlistment contract, dated June 24, 2003
Michigan Air National Guard Memorandum, dated June 24, 2003 (3 pages)
Memorandum, dated July 19, 2002
Memorandum, dated May 30, 2002
Character reference, dated March 28, 2002
Character reference, dated April 2, 2002
Graduate Academic Record, dated July 9, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: NONE
	Active:   USNR		900316 - 940206	HON
		   USN			940207 - 961111	HON

Period of Service Under Review:

Date of Enlistment:  961112		Date of Discharge:  970530

Length of Service (years, months, days):

	Active:    00  06  19
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  35/63

Highest Rate:  RP3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.29

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, MUC, NAM, SSDR (2), FMFR, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970411:	NJP for violation of UCMJ, Article 107 (4 specs): False official statement, violation of UCMJ, Article 121: Larceny.
	Date of Offenses: 961018, 970319, 970321, 960913.
	Award: Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.
970424:	Applicant signed Military’s Suspect’s Acknowledgment and Waiver of Rights:  Applicant made a voluntary statement admitting to deleting part of DOS from the Chaplain’s computer on 970415.

970424:	Charge Sheet for violation of the UCMJ, Article 89:Behave with disrespect to Captain by destroying his computers hard drive on 970415, violation of the UCMJ, Article 107: False official statement to investigator on 970415, to wit: went to chow at 1700, 970415, violation of the UCMJ, Article 108: Destroy by deleting the computers hard drive on 970415, violation of the UCMJ, Article 134 (2 specs): Break restriction on 2130, 960325, (2) Unlawfully enter the office of Captain on 970415.

970424:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970424:	Applicant advised of 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.

970430:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970514:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000222:	NDRB documentary record review Docket Number ND99-00069 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970530 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).

Issues 1-2:  The following is provided for the edification of the Applicant.  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.  As noted above, good conduct in civilian life is not in and of itself a sufficient basis to upgrade an unfavorable discharge.  While the Board commends the Applicant for the positive steps he has taken since his discharge, the Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant’s discharge accurately reflects his service to his country for the enlistment under review.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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