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

 
ex-OS3, USN
Docket No. ND04-00951

Applicant’s Request

The application for discharge review was received on 20040526.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041103.  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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I FEEL THAT MY DISCHARGE SHOULD BE UPGRADED BECAUSE I WAS LED TO BELIEVE THAT I WAS TO BE RETAINED. SO, I WAITED FOR SEVERAL MONTHS (5), WHILE EXHIBITING EXCELLENT BEHAVIOR BEING A MODEL SAILOR, ONLY TO FIND OUT TO THAT I WAS BEING DISCHARGED DUE TO AN OVERMANNED NAVY. MY DISCHARGE WAS UNWARRANTED AND CLEARLY IS AN EXAMPLE OF AN INJUSTICE THAT SHOULD CORRECTED. MY FELLOW SHIPMATES AT TPU, FOLLOWED MY LEAD WHILE CARRYING OUT THEIR DAILY TASK. I TOOK THE INITIATIVE TO COORDINATE
ASSIGNMENTS NECESSARY TO KEEP TPU ABOVE THE NAVY’S STANDARD OF EXCELLENCE; AND THIS WAS NOTED BY ALL OF MY SUPERIORS. IF I’M
ALLOWED TO HAVE A SECOND CHANCE BY HAVING YOU HONOR THIS REQUEST TO UPGRADE MY DISCHARGE AND RENLISMENT
CODE, I WOULD BE MOST APPRECIATIVE AND WOULD FINALLY HAVE CLOSURE TO MY INJUSTICE.”

Documentation

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

Copy of DD Form 214
Summary sheet of documents
Thirteen pages from service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991022 - 991207	COG
	Active:   USMC 		911021 - 951020	HON

Period of Service Under Review:

Date of Enlistment:  991208		Date of Discharge:  030630

Length of Service (years, months, days):

	Active:    03  06  23
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  2.66 (3)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  132

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

000127:	NJP for violation of UCMJ, Article 92: Consuming alcohol while on duty and negligently failed to maintain watch on 000122.
	Award:  Forfeiture of $150.00, correctional custody for 7 days.  No indication of appeal in the record.

000127:	Retention Warning:  Advised of deficiency (failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011212:	Missed movement of USS Ogden (LPD-5).

020122:	Civil Conviction:  Superior Court of California, County of San Diego for violation of PC 273.5(a), willfully inflicting corporal injury upon his spouse; and PC 12022.7(e), inflicting great injury under circumstances involving domestic violence in the commission or attempted commission of a felony.
Sentence:  Confinement for 210 days (81 days credit), fine and restitution of $400.00, probation for 3 years (confinement suspended upon successful completion of probation).

020726:	Summary Court-Martial.
		Charge I: Violation of UCMJ, Article 86: UA from 011130 to 020411.
Sentence: Forfeiture of 2/3 pay for one month, restriction for 60 days, and reduction to E-4.
		CA action: 020823.  Approved and ordered executed.

020923:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and commission of a serious offense.

020923:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030219:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a civil conviction, that the misconduct warranted a suspended separation for 6 months, and recommended discharge under other than honorable conditions.

030319:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and due to the commission of a serious offense, and that the discharge not be suspended.  

030630:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030630 under other than honorable conditions for misconduct due to civil conviction (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 one nonjudicial punishment (NJP) for violation of UCMJ, Article 92, one summary court-martial for violation of UCMJ, Article 86, and a civil conviction.  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 honorable or under honorable (general) characterization of service.  An upgrade is inappropriate.  The Applicant’s belief that he was going to be retained and performance while stationed with the Transient Personnel Unit neither mitigates his misconduct nor provides a basis for relief.  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.  The discharge was proper and equitable.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident 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.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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