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

   ex-EMFN, USN
Docket No. ND05-00299

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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

Applicant’s issues, as stated on the application:

1.  “Since my separation from the Navy, I have had a good work history.  I have been a tax paying citizen.  I am a registered voter.  I have had no infractions with the law of this country other than speeding tickets, or other traffic violations.  I have donated blood frequently to the American Red Cross.  I frequently attend church services.

In my youth I was irresponsible and immature.  I have done what I can to correct both issues.  I am a father of a child who is well loved.  I see her as much as possible and regularly make my child support payments.” 

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881130 - 890123	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890124		Date of Discharge:  931210

Length of Service (years, months, days):

	Active:    04  10  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  80

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (4)		Behavior:  3.85 (4)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630600.

Chronological Listing of Significant Service Events:

910828:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation.
	Award:  Forfeiture of $200.00 pay per month for 1 month (suspended for 3 months).  No indication of appeal in the record.

920701:	NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Reduction to E-4 (suspended for 6 months), correctional custody for 30 days (suspended for 6 months), forfeiture of $250.00 pay per month for 2 months.  No indication of appeal in the record. [Extracted from Commanding Officer’s letter]

930703:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $606.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

930825:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  [Extracted from Commanding Officer’s letter]

930909:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right submit a statement on his own behalf either verbally or in writing and   to obtain copies of the documents used to support the basis for the separation.  [Extracted from Commanding Officer’s letter]

931021:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Reduction to E-3, restriction for 45 days.  No indication of appeal in the record.

931109:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

931129:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Completed discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931210 under other than honorable conditions for misconduct due to commission of a serious offense (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  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.  Relief denied.

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 four nonjudicial punishment (NJP) proceedings for violation of UCMJ, Articles 86 (Unauthorized absences), and Article 92 (Failure to obey an order or regulation).  Violation of Article 92 is considered a serious offense.  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 upgrade of the characterization of service.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence relating 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), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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