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

  
ex-SR, USN 
Docket No. ND04-01324

Applicant’s Request

The application for discharge review was received on 20040827.  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 20050107.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Applicant’s issues, as stated on the application:

1.  “I AM REQUESTING A DISCHARGE UPGRADE BECAUSE OF MY TIME WASN’T UP.  PLEASE TAKE THE TIME TO REVIEW MY MAST PACKAGE AND YOU WILL SEE THAT MY THIRD MAST SHOULD HAVE BEEN APPEALED.  BUT OF COURSE I DIDN’T KNOW THAT I COULD APPEAL IT BECAUSE MY COMMAND DIDN’T MAKE ME AWARE OF WHAT WAS IN MY BEST INTEREST.  I DIDN’T FIND OUT UNTIL A WEEK BEFORE MY SCHEDULE DISCHARGE WHEN GROUP TWO’S JAG SAID THAT I SHOULD HAVE APPEALED THAT MAST.  IN ALL SAID, IF I WOULD HAVE APPEALED THAT MAST, THEN I WOULD STILL BE IN THE NAVY BECAUSE I WOULDN’T HAVE BEEN RECOMMENDED FOR DISCHARGE.  IT TOOK ME A WHILE TO ACCEPT THAT I WAS OUT OF THE NAVY.  BUT NOW I AM ATTENDING A CONSERVATIVE CHRISTIAN SCHOOL AND MY LIFE HAS TURNED AROUND FOR THE LORD.  WHEN I LEAVE BOB JONES UNIVERSITY WITH MY DEGREE, I AM HOPING TO REENTER THE MILITARY AS A CHAPLAIN.  I FEEL THAT MY PRIOR BEHAVIORS WILL ONLY MAKE MY TESTIMONY STRONGER AND MAKE ME A BETTER CHAPLAIN.  DOING THIS IS WHY I AM REQUESTING A DISCHARGE UPGRADE WITH THE ELIGIBILITY OF HOPEFULLY BEING ABLE TO REENLIST.  THANK YOU FOR GIVING ME THE OPPURTUNITY TO APPLY FOR THIS DISCHARGE UPGRADE.  PLEASE CONTACT ME IF YOU HAVE ANY QUESTIONS HERE AT B_ J_ UNIV. (XXX) XXX-XXXX EXT XXXX.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

Inactive: USNR (DEP)	010509 - 010518	ELS (DRUG)
	Inactive: USNR (DEP)	010626 - 010719	COG
	Active:   None	

Period of Service Under Review:

Date of Enlistment:  010720		Date of Discharge:  030904

Length of Service (years, months, days):

	Active:    02  01  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  65

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  *NMA	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

*No marks found in Applicant’s service record

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:

020731:	NJP for violation of UCMJ, Article 92:  Dereliction in the performance of duties.  In that SA (SU) M_ A_ A_ (Applicant), on active duty, who knew of his duties at Pier 3, Naval Station Norfolk, on or about 020729, was derelict in the performance of those duties in he willfully failed to stand a proper watch onboard USS NORFOLK (SSN 714) as a sentinel, as it was his duty to do; violation of UCMJ, Article 113:  Misbehavior of a sentinel or lookout.  In that SA (SU) M_ A_ A_ (Applicant), on active duty, at Pier3, Naval Station Norfolk, on or about 020729, being on post as a sentinel onboard USS NORFOLK (SSN 714) was found sleeping upon his post.
	Award:  Forfeiture of $619.00 per month for 1 month, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

020930:	Vacate 6 months suspension.

020930:	NJP Charge I for violation of UCMJ, Article 92 (1 Spec):  Failure to obey order or regulation.
	Specification 1:  In that SA (SU) M_ A_ A_ (Applicant), USN on 020929 active duty did on or about 020929 having knowledge of a lawful order issued by Portsmouth Naval Shipyard not to enter Building 93 (prison), an order which it was his duty to obey, did on or about 020929 failed to obey.
	Charge II, violation UCMJ, Article 92 (2 Specs):  Failure to obey order or regulation.
	Specification 1:  In that SA (SU) M_ A_ A_ (Applicant), on active duty did on or about 020914 having knowledge of a lawful order issued by the Federal Government not to drink under the age of 21, an order which it was his duty to obey, did on or about 020914 failed to obey the same by wrongfully drinking alcohol under the age of 21.
	Specification 2:  In that SA (SU) M_ A_ A_ (Applicant), on active duty did on or about 020914 having knowledge of a lawful order issued by Portsmouth Naval Shipyard not to enter Building 93 (prison), an order which it was his duty to obey, did on or about 020929 fail to obey the same by wrongfully entering off-limit building 93 (prison) on board Portsmouth Naval Shipyard.
Charge I, violation of UCMJ, Article 134 (1 Spec):  False or unauthorized pass offense.
	Specification 1:  In that SA (SU) M_ A_ A_ (Applicant), on active duty did on or about 020914 wrongfully and falsely altered by changing date of birth information on his Military Identification Card.
	Award:  Restriction for 30 days, reduction to E-1.  No indication of appeal in the record.

021218:	NJP Charge I, violation of UCMJ, Article 86 (1 Spec):  Absence without leave.
Specification 1:  In that SR (SU) M_ A_ A_, on active duty, did on or about 0900, 141214, without authority, absent himself from his unit to wit: USS NORFOLK (SSN 714), located at Portsmouth Naval Shipyard, Portsmouth, New Hampshire, and did remain so absent until on or about 0730, 021216.
Charge II, violation of UCMJ, Article 92 (1 Spec):  Dereliction in the performance of duties.
Specification 1:  In that SR (SU) M_ A_ A_, on active duty, who knew of his duties on board USS NORFOLK (SSN 714), on or about 0900, 021214, was derelict in the performance of those duties, in that he willfully failed to be at his appointed place for Delinquent Study, as it was his duty to do.
Charge III, violation of UCMJ, Article 107 (1 Spec):  False official statement.
Specification 1:  In that SR (SU) M_ A_ A_, on active duty, did, on or about 0900, 021214, with attempt to deceive sign an official record, to wit:  the Delinquent Study Muster Sheet, which record was false in that the check-out time was signed out earlier than the actual time and was then known by the said SR (SU) M_ A_ A_, to be so false.
Found guilty of violation of UCMJ, Article 92 and violation of UCMJ, Article107.
	Award:  Correctional custody for 30 days.  No indication of appeal in the record.

030425:	NJP for Charge I, violation of UCMJ, Article 92 (1 Spec):  Failure to obey lawful order.
Specification 1:  In that SR (SU) M_ A_ A_ (Applicant), on active duty, having knowledge of a lawful order issued by the Commanding Officer, USS NORFOLK (SSN 714), to wit; Letter of Instruction dated 030326, an order which it was his duty to obey did onboard USS NORFOLK (SSN 714) on 030411, failed to obey the same by his failure to complete said Letter of Instruction;
Charge II, violation of UCMJ Article 92 (1 Spec):  Dereliction in the performance of duties.
Specification 1:  In that SR (SU) M_ A_ A_ (Applicant), on active duty, who knew of his duties on board USS NORFOLK (SSN 714) at Portsmouth NH, was derelict in the performance of those duties in that he negligently failed to complete Submarine Qualifications by 030328, as it was his duty to do;
Charge I violation of UCMJ Article 134 (1 Spec):  False or unauthorized pass offenses (s).
Specification 1:  In that SR (SU) M_ A_ A_ (Applicant), on active duty, did on or about 030408, wrongfully and falsely alter, by changing the date of birth information on his Military Identification Card and that the accused used or possessed the identification card with an intent to defraud.
	Award:  Restriction for 30 days and separate from U. S. Navy.  No indication of appeal in the record.

030425:	Commanding Officer, USS NORFOLK, recommended to Commanding Officer, SUBRONSUPPU, GROTON, that Applicant be processed for discharge due to commission of serious offense and given an under other than honorable discharge.

030708:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

030708:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a written statement for consideration by the Separation Authority, and the right to obtain copies of the documents used to support the basis for the separation.

030714:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  Due to this member’s 4 Commanding Officer nonjudicial punishment’s, I recommend that he be discharged from the naval service with a characterization of general (under honorable conditions) discharge.

030725:	Commander, Submarine Group Two authorized the Applicant's discharge with a general (under 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 20030904 with a general (under 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:  Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on four occasions for violations of the UCMJ, Articles 86, 92, 107, 113 and 134 thus substantiating his misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  The Applicant has provided no evidence to support his claim that he was not afforded his rights to appeal his final Captain’s Mast and therefore the Board presumed the Applicant was properly and equitably processed for administrative separation.  An upgrade would be inappropriate.  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.  

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 sufficient 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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