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

 ex-CTOSA, USN
Docket No. ND04-00984

Applicant’s Request

The application for discharge review was received on 20040604.  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 designated the American Legion as the representative on DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  After a thorough review of the available 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 1910 - 142 (formerly 3630605).

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application dated April 5, 2004:

1.  “I made errors in my service career - being young newly married and divorced in the same year affected my decision making and judgement.  I never wanted to be discharged from the Navy.  It has always been my home since I was 14 in the Sea Cadets.  I let my personal life affect my work life.  I want my discharge upgraded because Im a little older now and feel I need to go back to where I was happy.  In the Navy it is my home.  The poor choices that I made cant be taken back, I didn’t think.  Just reacted and accepted the punishment that was given.
My job performance was never affected just my personal appearance.  I willingly accept my decision given by the Board but whole heatedly hope that my request can be overturned so I can rejoin my brothers and sisters.  Ive grown a lot in the last couple of years but there is always room for more.
My divorce made me realize that only I can keep my self on the straight and narrow - my wife cheated on me.  Now I want to make thing right Ive never quit anything before and the way I see I owe at least 3 more years to the service and to my country.

Thank you for the review hopefully I’ve said enough to aid your decision in a positive way.  Thank you for your time”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflects that this former member maintained performance and conduct markings of 1.67 ITA and earned the AFOUA.  He was awarded NJP on 990211 for VUCMJ, Articles 86, 92, 117 and NJP on 991201 for VUCMJ, Articles 86, 92.  On 000430, he discharged General (Under Honorable Conditions) due to misconduct as authorized by NAVMILPERSMAN, Article 1910-142.

This Applicant has not submitted any contentions, issues or additional documentation for consideration.

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, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

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:

Applicant’s DD Form 214 Member 1
Applicant’s DD Form 214 Member 4
Applicant’s previously submitted application (DD Form 293) dtd Apr 4, 2005 returned by the Board as incomplete

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960816 - 970716	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970717		Date of Discharge:  000430

Length of Service (years, months, days):

	Active:    02  09  14		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  CTOSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  AFOUA

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

990211:	NJP for violation of UCMJ, Article 86: Absence without leave from 990812 to 990818, violation of UCMJ, Article 92: Failure to obey other lawful written order, violation of UCMJ Article 117: Provoking speeches or gestures.
	Award: Correctional custody for 30 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

990211:	Retention Warning:  Advised of deficiency (PRT failure), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990614:	Retention Warning:  Advised of deficiency (PRT failure), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991201:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey other lawful order.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2, oral reprimand.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

000430:	DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to the commission of a serious offense authority:  NAVMILPERSMAN, Article 1910-142.

Applicant’s discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000430 with a general (under honorable conditions) characterization by reason of misconduct due to commission of a serious offense (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issue 1.  The Applicant contends that his problems in the Navy can be attributed to letting his “personal life affect my work life.”  While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 retention warnings and two nonjudicial punishment proceedings for violations of Articles 86, 92 and 117 of the UCMJ. The Applicant’s violation of Article 92 is considered a serious offense.  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.

Regarding reenlistment, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  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.  

Issue 2.  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.  

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 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, failure to obey an order/regulation, if adjudged at a Special or General Court Martial

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.

E.  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.

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