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

 ex-DCFN, USN
Docket No. ND04-00729

Applicant’s Request

The application for discharge review was received on 20040331.  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 the Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “ For purposes of schooling and because no valid reason exist for character of discharge given.  My discharge (block 28) indicates reason for discharge as “Misconduct”.  I respectfully dispute this-I was never given any type of punishment (administrative) or otherwise), and I should have been given an “Honorable”.

Additional issues submitted by Applicant’s counsel/representative DISABLED AMERICAN VETERANS:

Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from June 6, 1995 to August 8, 1997 at which time he was discharged due to Misconduct. 

The FSM, based on submittal of the application, request a records review for an upgrade of the current General discharge, stating he was never given any type of punishment (administrative or otherwise), and should have been given an honorable discharge, and that no valid reason for the current character of discharge exists. 

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of the Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940616 - 950605	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950606		Date of Discharge:  970808

Length of Service (years, months, days):

	Active:    02  02  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11		AFQT:  37

Highest Rate:  DCFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NAVY”E” RIBBON

Days of Unauthorized Absence:  None

*No Marks made available for review.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970624:	NJP for violation of UCMJ, Article 134: Indecent language on 970619.
	Award:  Forfeiture of $505.00 pay per month for 2 months, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

970628:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of homosexual conduct as evidenced by member’s statement that he is a homosexual or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and misconduct due to the commission of a serious offense by your conviction at non-judicial punishment during your current enlistment on 970624 (Violation of UCMJ, Article 134, Indecent Language).

970630:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970630:	Commanding Officer recommended discharge general (under honorable conditions) by reason of homosexual conduct as evidenced by member’s statement that he is a homosexual or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and misconduct due to the commission of a serious offense by your conviction at non-judicial punishment during your current enlistment on 970624 (Violation of UCMJ, Article 134, Indecent Language).

970729:	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 19970808 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The record shows that the Applicant received nonjudicial punishment for violation of Article 134, indecent language.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General 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 a nonjudicial punishment proceedings for violation of Article 134 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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), 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023