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

  ex-FR, USN
Docket No. ND05-00254

Applicant’s Request

The application for discharge review was received on 20041129.  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.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050323.  After a thorough review of the available 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I WOULD LIKE TO RESPECTFULLY REQUEST A REVIEW OF MY MILITARY RECORD AND HAVE MY OTHER THAN HONORABLE CONDITION CHANGED TO AN HONORABLE STATUS.”

Additional issues submitted by Applicant’s representative Veterans of foreign wars:

2.  “Propriety and Equity Issue(s):  The Applicant was separated for misconduct due to the commission of a serious offense, but was never found guilty of any misconduct by reason of any action more serious than NJP.

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 was separated from the Navy after 3 NJPs at which he was found guilty of violating Article 86 of the UCMJ (7 Specifications) and Article 113 (1 Specification).  The Applicant was never tried by court-martial or any other judicial body.  The Applicant feels that his discharge is unduly harsh in the light of his honorable service.

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:

Certification of Military Service, dated November 19, 2001
Letter to request a change of status from Applicant, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890913 - 890919	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890920		Date of Discharge:  921118

Length of Service (years, months, days):

	Active:    03  01  29
	Inactive:  None

Age at Entry:  17(Parental Consent) Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.87 (3)		Behavior:  3.33 (3)		OTA:  3.13

Military Decorations:  None

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

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920221:	NJP for violation of UCMJ, Article 86:  In that SNM on or about 920131 was 1 hour and 56 minutes late for watch; violation of UCMJ Article 113:  SNM did on or about 92JAN31 fall asleep on watch in the fireroom.
	Award:  Forfeiture of $250.00 per month for 2 months, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

920221:	Retention Warning:  Advised of deficiency (NJP, in which you were punished under the UCMJ as a result of your sleeping on watch, absent from appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920611:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized absence.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

920921:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized absence.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 30 days.  Recommendation for ADSEP.  No indication of appeal in the record.

920921:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  [Extracted from CO, USS ENGLAND’S msg of 20 OCT 92].

920921:	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.  Applicant acknowledged that characterization of service may be under other than honorable conditions.  [Extracted from CO, USS ENGLAND’S msg of 20 OCT 92].

920926:	Commanding Officer recommended Applicant’s discharge by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim):  FR S_ (Applicant) has been given every opportunity to conform to military standards and displays no signs of improvement.  His pattern of behavior is incompatible with military service and constitutes conduct prejudicial to good order and discipline.  Because of his inability to adhere to military discipline despite strongly recommend he be administratively separated for misconduct due to a pattern of misconduct.

921006:	BUPERS advises no further action can be taken because counseling doesn’t meet criteria.  Applicant may be processed for commission of a serious offense.

921020:	Commanding Officer recommended Applicant’s discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  SNM is being processed for commission of a serious offense.  FR S_ (Applicant)’s performance continues to decline.  He has been given every opportunity to conform to military standards and displays no signs of improvement.  Because of his inability to adhere to military discipline.  I have determined that he be recommended for administrative separation under conditions for misconduct due to commission of a serious offense.  His pattern of behavior is incompatible with military service and is considered to be conduct prejudicial to good order and discipline.

921104:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package not available in record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921118 under other than honorable conditions by reason of misconduct due to commission of a serious offense (A & B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C & D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issue 1.  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 retention warning and three nonjudicial punishment proceedings for violations of Articles 86 and 113 of the UCMJ. Violations of Article 113 of the UCMJ are considered serious offenses.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  Commission of a serious offense does not require adjudication by judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  A serious offense is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge.  While the Board regrets that the Applicant must live with the stigma associated with the term "serious offense," it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the Applicant's discharge.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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.  As of this time, the Applicant has not provided any applicable documentation for the Board to consider.  Relief denied.

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), effective 15 Aug 91 until 
04 Mar 93, 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 113, misbehavior of a sentinel or lookout, 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.

E.  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.

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