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

  
 ex-SA, USN 
Docket No. ND05-00137

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list a representative on her DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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:

“AN OTHER THAN HONORABLE DISCHARGE IS AN INCORRECT CHARACTERIZATION OF MY MILITARY SERVICE

  I served in the Navy for nearly three years.  Unfortunately, I made the mistake of missing movement of my ship in the last few weeks of my Navy career.  This was a terrible mistake, one that I received punishment for.  I received a reduction in rank, deduction of pay, and confinement to the ship.  Due to the fact that I had no negative marks on my service record before this isolated incident, I beleive I deserve an Honorable Discharge.  I served my Navy well, yet I made one mistake that has cost me during my service and for the remainer of my life.  I do not take the offense of missing movement lightly, and I realized then and now that I let the Navy down.  I do not deny missing movement that day, but I feel that this incident does not classify my entire service as “Other Than Honorable.”  While in the Navy I volunteered on two occassions for Special Olympics.  I also volunteered on two occassions for Habitat for Humanity.  At my first duty station, I was asked to Volunteer for the base Auxillary Security Force, in which I remained for my two year tour at Meridian NAS, Mississippi.  I do not think I am above the military.  I have great respect for the military.  I will not make excuses for my actions.  I feel justified in making my request, and I ask that you do not judge my service based on one incident.  No persons were harmed or put in danger while I missed movement.  I did not miss movement during war or siege.  Please allow me to have a change of discharge.  This isolated incident was and is not my character.”

Documentation

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

Copies of 5 pages from DODD 1332.14 December 21, 93
Letter from the Applicant (2 pages), dtd November 17, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960111 - 960204	COG
	Active:   None			

Period of Service Under Review:

Date of Enlistment:  960205		Date of Discharge:  981027

Length of Service (years, months, days):

	Active:    02  08  22  (includes lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  0.00 (*)		Behavior:  0.00 (*)		OTA:  0.00

Military Decorations:  None

Unit/Campaign/Service Awards:  Expert Pistol Shot Medal

Days of Unauthorized Absence:  5

*No marks found in Applicant’s service record.

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:

980928:	Administrative Remarks: Applicant on unauthorized absence after ship’s movement as of 1000, 980928.  Intentions unknown.

980928:	Administrative Remarks: Applicant missed sailing of the USS THE SULLIVANS (DDG 68) from Mayport, Florida for Operations in the Jacksonville area.

981002:	Applicant from UA, surrendered on board the USS THE SULLIVANS (DDG 68) at 1852, 981002. 

981009:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1000, 980925 to 1852, 981002 and violation of UCMJ, Article 87: missed movement of USS THE SULLIVANS (DDG 68) at Mayport, FL on 980925.
	Award:  Forfeiture of $519.15 per month for 2 months, reduction in rate to E-2, restriction and extra duty for 45 days to the limits of USS THE SULLIVANS (DDG 68).  No indication of appeal in the record.

981009:	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 based on homosexual conduct as evidenced by member’s [Applicant] statement the he or she is a homosexual, or words to that effect, which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

981009:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

981016:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.  Commanding Officer’s comments (verbatim): SN R_ was taken to Captain’s Mast for being UA and missing ship’s movement.  Upon her return, she made an unsolicited statement to her Division Officer that she was homosexual.  Subsequent investigation supported her claim.  

981023:	CNMPC 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 19981027 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The Applicant contends that she made one isolated mistake “in the last few weeks of her my Navy career” and that she deserves an Honorable discharge.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 a nonjudicial punishment proceeding for violations of Articles 86 and 87 of the UCMJ.  Also, the Applicant made an unsolicited statement to her Division Officer that she was homosexual and a subsequent investigation supported her claim.    The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.
 
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided her own letter as documentation of her post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for the Board to consider post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  

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 her 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), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, missing movement, 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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