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

 
 ex-AR, USNR
Docket No. ND04-01233

Applicant’s Request

The application for discharge review was received on 20040726.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application the Applicant obtained representation from the Disabled American Veterans.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050921.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by the Applicant’s representative (Disabled American Veterans) at the time of the Applicants personal appearance hearing supersede those submitted originally on Form DD-293:  

1.  “Upgrade of Other than Honorable Discharge (OTH) to Honorable based on the improprieties of the NJP’s on active duty, with consideration also of an upgrade to a General Under Honorable Conditions discharge.

2.  Post-Service Activities; utilized to upgrade the OTH discharge to a General Under Honorable Conditions discharge, based on equitable relief.”

Documentation

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

Prince William County Police Department, Results of Criminal History Search, dated September 22, 2005
City of New York Police Department, Verification of Membership in Auxiliary Police Program, dated September 29, 2005
Character Reference Letter from Bishop R_ I. W_, The Soul Saving Station for Every Nation of the Christ Crusaders of America, Inc., dated September 28, 2005
City of New York Police Department, Good Conduct Certificate, dated October 3, 2005
City of New York Police Department, Certificate of Recognition, dated October 2002
Applicant’s DD Form 214
Applicant’s service record documents (4 pages)
Applicant’s civilian and military medical records (21 pages)
Applicant’s fare card

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901113 - 910506	ELS (Fail to graduate)
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920528		Date of Discharge:  940119

Length of Service (years, months, days):

	Active:    01  05  00
	Inactive:  00  02  22

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  50

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (2)		Behavior:  2.30 (2)		OTA:  2.30

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920820:	Applicant to active duty for 2 years under the Airman Apprentice program.

930723:	Medical evaluation:  Knee swollen, soft tissue injury.  Applicant to limited duty, no lifting greater that 5 pounds, no prolonged standing.

931023:	NJP for violation of UCMJ, Article 86:  Fail to go at the time prescribed to his appointed place of duty on 1200-1415, 931003.
	Award:  Forfeiture of $456 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

931124:	Medical evaluation:  Knee pain.  Applicant to limited duty for 2 days.

931201:	Medical evaluation:  Applicant restored to full duty status.

931202:	Punishment of reduction in rate to E-2 suspended at CO’s NJP dated 931023 vacated this date due to continued misconduct.

931202:	NJP for violation of UCMJ, Article 86:  Fail to go at the time prescribed time, to wit: XOI on 931128, violation of UCMJ, Article 91:  Disobey a lawful order from a noncommissioned officer on 931130, violation of UCMJ, Article 134:  Breaking restriction on 931121.
	Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  Forfeiture for 1 month suspended for 6 months.  No indication of appeal in the record.

931204:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense as evidenced by nonjudicial punishment on 931202, for violation of UCMJ, Article 91: Disobey a lawful order from a noncommissioned officer.  If separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

931204:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant objected to separation.

931210:	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): While attached to VF-213, AR T_ (Applicant) has been a growing administrative burden to the command.  He has received counseling at all levels of the chain of the command from his leading petty officer to the commanding officer, and has been afforded several opportunities to correct his deficiencies.  Common tendency is to be confused and exercise poor judgement.  To allow him to continue further service in the U.S. Navy would be detrimental to good order and discipline in this command.  I recommend that AR T_ (Applicant) be separated under other than honorable conditions.

931216:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981102:	NDRB documentary record review Docket Number ND98-00186 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940119 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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.  The Applicant, through counsel, contends that his discharge should be upgraded because of the improprieties of the nonjudicial punishments he suffered while on active duty.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  To support his contention, the Applicant testified that he had not committed the misconduct for which he was awarded nonjudicial punishment.  The service record contains evidence that the Applicant was awarded NJP on two separate occasions for violations of UCMJ Articles 86, 91, and 134.  Based on these records, the Board found nothing irregular or out of the ordinary with respect to the Applicant’s nonjudicial punishments that would substantiate his claims.  The government’s agents appear to have acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  After careful deliberation and discussion, the Board unanimously concluded that the Applicant’s testimony alone was insufficient to overcome the evidence of record.  As such, relief on this issue is not warranted.

Issue 2.  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 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 could 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.  The Board received and considered all of the Applicant’s submissions, including an exemplary record of service with the New York City Police Department Auxiliary, his work at the Soul Saving Station Church, employment as a teacher and bus driver at the Minnyland school, and his clean criminal background checks from the New York City Police Department and Prince William County Police Department.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer 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.

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