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

  ex-BMSN, USN
Docket No. ND05-00654

Applicant’s Request

The application for discharge review was received on 20050302.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050616.  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 – 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’m requesting consideration for an upgrade of my discharge from the U.S. Navy.  Please read my personal statement that is attached to this form.”

ITEM 16. REMARKS:  I believe that I have become a mature & responsible citizen.  I am married with children and I’m devoted to my family, God and Country.  I believe that my service was honorable and I received very good conduct and proficiency evaluations until my offense.  Please consider my request for this discharge. “   

The Applicant’s personal statement dated 06 Feb 2005:

“To Whom It May Concern:

I S_ B R_ (Applicant) respectfully request that my discharge be considered for the upgraded to honorable.  I believe since my discharge in 1992 that I have become a more responsible and mature person.  I have been married to my wife B_ for the past 7 years and have been a father to my son J_ for the past 2-½ - years.  I have been with the same Security Company for the last 8 years and in the security Ind. for the past 13 years.  I have gotten along with all fellow officers and supervisors throughout the 13 years.

I have done a 3-year enlistment with the Ohio Naval Militia witch is a voluntary organization witch is stationed out of Camp Perry Ohio and takes it orders from the Aegean General and the Governor of Ohio.  They patrol the firing range off of Camp Perry during live firing exercises to keep boaters out of the impact area on lake Erie. During my enlistment in the navy

I got along with my fellow shipmates and the officers aboard the ship.  Since my discharge there has not been a day that has gone by that I wish I could go back in time and correct the mistakes that caused me to be discharged.

Thank you,
[signed]
S_ B R_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Applicant’s statement dated February 6, 2005
Reference Letter from Commanding Officer Ohio Naval Militia dated February 18, 2005 	(Not signed)
Character Reference Letter from LT G___ J. C___, Ohio Naval Militia dated February 15, 2005 (Not signed)
Service related documents (39 pages)
Cover Letter from Portage County Veterans Service Office dated February 22, 2005      

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881221 - 890709	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890710		Date of Discharge:  920529

Length of Service (years, months, days):

	Active:    02  10  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  22

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  3.30 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, NUC, NDSM, SSDR, SASM, KLM

Days of Unauthorized Absence:  17

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:

920511:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit on or about 0700, 920417 until on or about 0648, 920504 (17days/S); violation of UCMJ Article 92: Possession of concealed weapons on or about 920506.
	Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

920513:	Applicant notified of intended recommendation for administrative discharge by reason of misconduct due to the commission of a serious offense as evidenced by your punishments under the UCMJ in your current enlistment.  Applicant is also notified that if the separation is approved, the characterization may be under other than honorable conditions.

920513:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920515:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. CO’s comments: “ BMSN R_’s decision to bring on board NAVSTA Long Beach concealed weapons indicates a blatant disregard for military authority and regulations.  He has expressed an intense desire to separate from the Navy.”

920522:	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 19920529 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 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 two unsigned letters of character reference from members of the Ohio Naval Militia as documentation of his post-service.  While the Board acknowledges the Applicant’s service, his 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 consideration for clemency based on 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.  Therefore, no relief will be granted.  

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 (UA for 17 days) and 92 (failure to obey order, regulation) of the UCMJ.  The UCMJ considers violation of Article 92 a serious offense. 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.

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 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), 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 92, failure to obey order, regulation,  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