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

  ex-FR, USNR
Docket No. ND05-00029

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance discharge review before a traveling panel closest to Jacksonville, NC.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held at the Washington Navy Yard in Washington DC.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050323.  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

No issues were submitted by the Applicant.

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)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  930730		Date of Discharge:  950421

Length of Service (years, months, days):

	Active:    01  06  29
	Inactive:  00  01  23

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  43

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  19

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:

930927:	Commenced 24 months of active duty under the Fireman Apprenticeship program.

940827:	Civil Conviction:  General Court of Justice, District, Jones County Trenton Seat of Court, North Carolina for felonious breaking and entering and felonious larceny.
	Plead guilty to Larceny and speeding. 
Sentence:  12 months supervised probation, fined $200.00, and restitution of $183.34.

940920:	UA from AFDM TEN RESOLUTE 1335, 940828; member being held in hands of civilian authorities, Jones City Jail, Jones County North Carolina, returned to military control AFDM TEN RESOLUTE 1730, 940916.

941013:	Retention Warning:  Advised of deficiency (Failure to pay just debt to Norfolk General District Court on 940922.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941110:	NJP for violation of UCMJ, Article 92 (2 Specs), On or about 941026, failure to obey order or regulation; violation of UCMJ Article 134: On or about 941026, provoking speeches or gestures.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

941110:	Retention Warning:  Advised of deficiency (Inability to obey order or regulation, i.e. to obey Senior Petty Officers, and insubordinate attitude toward superiors which resulted in CO’s NJP on 941110), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950301:	Applicant notified of intended recommendation for discharge by reason of misconduct as evidenced by misconduct due to commission of a serious offense.  Applicant notified that if separation is approved, the least favorable characterization of service is under other than honorable conditions 

950310:	NJP for violation of UCMJ, Article 86: On or about 1335, 940828 to 1730, 940916 (19days), absence from unit, organization, or place of duty.
	Award:  Reduction to E-1.  No indication of appeal in the record.

950307:	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 the separation.

950308:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

950317:	BUPERS directed the Applicant's discharge under other than 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 19950421 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).

The Applicant submitted no decisional issues for the Board’s consideration.  Nonetheless, the Board performed a careful review of the Applicant’s case.  An under other than honorable conditions 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 orders violations, provoking speech and gestures, failure to pay just debts, insubordinate conduct, unauthorized absence and a civilian conviction for felonious larceny and speeding.  This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 92, and 134.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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