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

ex-AR, USN
Docket No. ND04-00848

Applicant’s Request

The application for discharge review was received on 20040428.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record  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 20041029.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

I am writing this letter in regard to have my dd-214 changed to a general discharge.  I feel though I may not deserve it, because of reasons for my discharge to begin with.  I have been out of the navy for over sixteen months now.  Since I’ve been out I feel as if I have been through hell.  I’m currently going through a divorce, custody battle over the children and holding down a full time job.  But that’s all it is; a job. It’s not the career.  The navy should have been my career, but I allowed personal feelings get in the way of that.  I was more worried about what my wife was doing at home rather than worrying about my mission in the service.  Turns out it didn’t matter anyway.  She’s moved on giving a whole new meaning to the term "navy wife." for me, honestly, I have no regrets.  I found myself as well as what was more important; my children.  I just want to move on with a fresh start.  If I could, yes I’d be more then willing to go back in and finish my time honorably.  Until that day comes where the slow-minded are allowed to come back, currently I do believe it is impossible.  So I come to you, the board, and beg to change my discharge.  Maybe it’ll help change my life for the better.  It’s a weight I carry on my chest everyday.  Only you can lift that weight. I thank you for your time and hope to hear from you soon.

Former serviceman,”

Documentation

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

Job reference, dated November 12, 2003
Applicant’s DD Form 214 (Member 1 and 4)
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990330 - 990407	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990408			Date of Discharge:  020701

Length of Service (years, months, days):

	Active:    03  02  23
	Inactive:  None

Age at Entry:  18				Years Contracted:  4

Education Level:  Not found in record	AFQT:  32

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  92

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990604:	NJP for violation of UCMJ, Article 92 (4 specs): (1) Fail to obey a lawful general order on 990524, to wit: SECNAVINST 5300.26c dated 971017 by wrongfully sexually harassing SR R_, (2) Various times between Apr99 to May99, [other information not contained in service record] (3) Various times between Apr99 and May99, by wrongfully sexually harassing SR P_, (4) Various times between Apr99 and May99, by wrongfully sexually harassing SR V_.
	Award: Forfeiture of $207 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

000710:	Applicant to unauthorized absence 0630, 000710.

000713:	Applicant from unauthorized absence 0630, 000713 (3 days/surrendered).

010520:	NJP for violation of UCMJ, Article 86 (6 specs): (1) Absence from unit on 0715-0750, 010504, (2) Absence from unit on 0900, 010417-0715, 010410 [as written in the service record], (3) Absence from unit on 0715, 010402 to 0945, 010403 (1 day), (4) 0715, 010327 to 0715, 010328 (1 day), (5) 0730, 010325-0730, 010326 (1 day), (6) 0715-0945, 010322, violation of UCMJ, Article 91: Willful disobedience of a first class petty officer on 010419.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

011019:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent from 010801 until 010921 (50 days).
	Charge II: violation of the UCMJ, Article 87 (3 specs):
	Specification 1: Missed ship’s movement on 010827.
	Specification 2: Missed ship’s movement on 010813.
	Specification 3: Missed ship’s movement on 010801.
	Charge III: violation of the UCMJ, Article 90:
	Specification: Willfully disobeying a lawful command from his superior commissioned officer.
	Finding: to Charge I, II and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $500.00, reduced to E-1.
	CA action 011211:  Sentence approved and ordered executed.

020529:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Date of offenses: 020515, 020516, 020520, 020411 until 020507, 020402, 020403, 020325, and 020326.
	Award: Forfeiture of $577 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months. No indication of appeal in the record.

020608:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020608:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020611:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020624:	Commander, Cruiser-Destroyer Group FIVE 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 20020701 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and a summary court-martial on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an under honorable (general) characterization of service.  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 actions.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.   

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION 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