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

 ex-SR, USN
Docket No. ND04-01050

Applicant’s Request

The application for discharge review was received on 20040618.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  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.  “The discharge was UnJust, and unfair.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010130 - 010225	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010226		Date of Discharge:  030707

Length of Service (years, months, days):

	Active:    02  04  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  3.00 (1)		OTA:  2.33

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, Navy “E” Ribbon, SSDR

Days of Unauthorized Absence:  Unknown

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:

010605:	NJP for violation of UCMJ, Article 121: Larceny.
	Award:  Forfeiture of $450.00 per month for 1 month, restriction for 14 days.  No indication of appeal in the record.

020124:	NJP for violation of UCMJ, Article 86:  Unauthorized absence; violation of UCMJ, Article 92: disobeying a lawful order.
	Award:  Forfeiture of $619.00 per month for 1 month, restriction and extra duty for 25 days.  No indication of appeal in the record.

021108:	Retention Warning:  Advised of deficiency (UA, willfully disobey a superior commissioned officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

021108:	NJP for violation of UCMJ, Article 86:  Unauthorized absence; violation of UCMJ, Article 90: Willfully disobeying a superior commissioned officer.
	Award:  Forfeiture of $619.65 per month for 1 month, restriction and extra duty for 30 days, reduction to SR (reduction in rate suspended for six months).  No indication of appeal in the record.

021120:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.

030204:	Summary Court-Martial 
	Charge I:  Violation of the UCMJ, Article 86.
	Findings: Charge I, guilty.
	Sentence:  Reduction to E-1.	

030707:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  SR Reynolds’s total disregard of Naval policies and failure to adapt to guidelines set forth in the Uniform Code of Military Justice has brought discredit upon himself, his command, and his service.  I strongly recommend separation from the Naval service with a characterization of service of Other Than Honorable. 

030707:	Applicant Discharged in Absentia.

PARTIAL DISCHARGE PACKAGE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20030707 under other than honorable conditions for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 on three occasions for violating the UCMJ, Articles 86, 90, 92 and 121 and a summary court-martial for violating the UCMJ, Article 86 thus substantiating the misconduct.  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 discharge.  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. 

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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), re-issued October 2002, effective 22 Aug 02 until Present, 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 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 2, 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 "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