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

  ex-AT3, USNR
Docket No. ND04-01407

Applicant’s Request

The application for discharge review was received on 20040909.  The Applicant requested 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 National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed the Veterans of Foreign Wars as his representative on DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050316.  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.  “Please consider original service record as well as my Reserve record.  My career is an Honorable one.  I have had no other adverse action in my sixteen years of service.  I have never been in any trouble before or since this isolated incident.

I am currently employed at two locations trying to support my family and do the right thing by the child I now have.

I was not able to appeal my NJP while I was still in the service because I could not support my family on half pay of an E-4.  I was on 60 day restriction.  This was very unfair to me.  I needed to leave ASAP to get a job and support my family.

I would like to be able to go back into any branch of the service and full fill my obligation to my country of four years.  I told my command Master Chief that I would gladly go anywhere I was needed including Iraq.  I do have specialized security training that I believe would be a benefit.

I am not the person I was made out to be in NJP.  I requested to take blame from the other individual involved so as to protect her and the baby she carried.  I never physically harmed or threatened to harm anyone.  Of course with an affair people are emotionally hurt as was I.  Please read my personal letter, it is all the truth.

Please also consider the numerous character references included with this request

Thank you for your prompt response and consideration of these matters.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “Propriety and Equity Issue(s):  The applicant’s OTH discharge is inequitable in the light of his many years of honorable service in the navy and the navy Reserves.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant feels that his discharge is inequitable in the light of his many years of honorable service.  His romantic entanglement with a married junior colleague did not affect his performance, and the colleague in question was not punished for her role in the affair.  The applicant feels that he was unfairly singled out for punishment and that the treatment afforded him was inequitable. 

The Veterans of Foreign Wars’ 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 § 1553, and set forth in 32 CFR § 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 personal letter to the Board, dated August 20, 2003
Character reference, dated August 6, 2003
Character reference, not dated
Character reference, not dated
Letter of Appreciation, dated June 8, 2003
Master At Arms Conversion Recommendation letter, dated April 11, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860806 - 870301	COG
	Active:   USN 		870302 - 910228	HON
	Active:   USN			910301 – 970228	HON
	Active:   USNR		970507 – 990501       HON
	Active:   USNR		990502 – 020114	HON

Period of Service Under Review:

Date of Enlistment:  020115		Date of Discharge:  030603

Length of Service (years, months, days):

	Active:    01  04  19
	Inactive:  None

Age at Entry:  39			Years Contracted:  4

Education Level:  12			AFQT:  77

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)		Behavior:  2.00 (3)		OTA:  2.43

Military Decorations:  NAM, GCM(2)

Unit/Campaign/Service Awards:  NER, NDSM(2), SWASM(2), NUC, KLM, JMUC, EPM, AFRM(M), SSDR(2), KLM(K), NRMSM(2)

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

030228:	CO’s NJP held this date.  Nothing further found in record.

030522:	NJP for violation of UCMJ, Article 92:  Disobey a lawful order, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 134.
	Award:  Forfeiture of $902 per month for 2 months, extra duty for 60 days, reduction to E-4.  No indication of appeal in the record.

030523:	Commanding Officer, Naval Air Station, Jacksonville, Florida notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct.

030523:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

030527:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct.

030529:	Commander, Navy Region Southeast directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030603 under other than 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:  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 two nonjudicial punishment (NJP) proceedings for violations of Articles 92 (Disobey a lawful order), Article 107 (False official statement), and Article 134.  The violation of these articles are considered serious offenses.  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 characterization of service.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  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:  To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  Relief denied.

The following is provided for the edification of the Applicant.  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 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.  

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.  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