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

FOR OFFICIAL USE ONLY

  ex-HM2, USN
Docket No. ND05-00872

Applicant’s Request

The application for discharge review was received on 20050425.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by American Legion. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I am presently a federal law enforcement officer with the Dept of Homeland Security BCBP.  I wish to upgrade because I only had one bad experience at only one command.  Since my discharge, I have been a paralegal with the State of Ohio Public Defenders Office and a deputy sheriff with the county of Trumbull, Ohio.  An upgrade would be greatly appreciated.”

Applicant’s representative submitted no issues for consideration.

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)	19861107 – 19861117		COG
	Active:   USN 			19861118 – 19911107		HON

Period of Service Under Review:

Date of Enlistment:  19911108		Date of Discharge:  19960216

Length of Service (years, months, days):

	Active:    04  03  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	1 day
	Confinement:			None

Age at Entry:  23

Years Contracted:  6 

Education Level:  12				AFQT:  43

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (4) 		Behavior:  4.0 (4) 		OTA:  4.0 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Second Good Conduct Medal for Period Ending 94NOV17, National Defense Service Medal, Overseas Service Ribbon (2), Flag Letter of Commendation (2).

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

911108:	Reenlisted this date for a term of 6 years.

950615:	Violation UCMJ, Article 91:  On or about 950615, Applicant treated with contempt a superior ranking petty officer, who was in the execution of his office, by closing a door in the face of the petty officer.  [Extracted from Commanding Officer’s letter.]

950622:	Violation UCMJ, Article 92:  From about 950306 to about 950622, Applicant was derelict in the performance of his duties by culpable inefficiency, failed to correct the discrepancies noted in the Commander, Marine Forces Reserve inspection report of MAG-42 Det A’s medical and dental records dated 950303 as it was his duty to do.  [Extracted from Commanding Officer’s letter.]

950626:	Violation UMCJ, Article 134:  On or about 950626, Applicant wrongfully and without authority did wear upon his uniform the Dive Qualification Insignia.  [Extracted from Commanding Officer’s letter.]

950824:	Applicant to unauthorized absence at 0630 on 950824.

950825:	Applicant from unauthorized absence at 0730 on 950825 (1 day/surrendered).

951108:	Applicant’s statement.

951222:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of the serious offenses of contempt toward a superior petty officer and wearing an unauthorized insignia.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

951227:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights except the right to submit statement on own behalf either verbally or in writing, obtain copies of the documents used to support the basis for the separation, and to be transferred to the Fleet Reserve/Retired list.  Applicant did not object to the separation.

Undated:	Commanding Officer, Marine Aircraft Group 42 Detachment A, 4TH Marine Aircraft Wing, NAS Cecil Field, FL recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of the serious offenses of contempt toward a superior petty officer and wearing an unauthorized insignia.  Commanding Officer’s comments:  “A review of the enclosures clearly depict a Sailor lacking respect for authority.  Not only had he shown his unworthiness to the Navy by his contempt towards a superior and his wearing of unauthorized insignia on his uniform, but enclosure (9) through (11) show him being derelict in the performance of his duties as well.  In view of the above mentioned infractions and his lack of performance, I feel that HM2 R_ (Applicant) can no longer be trusted to serve faithfully in the United States Naval Service.  I therefore recommend he be separated immediately.  Based on his prior service record I recommend the characterization of service upon separation be, ‘General (Under Honorable Conditions).’  I further recommend that he be reduced to the next inferior pay grade prior to separation.  His excuse for the improper wearing of the Dive insignia on his Navy uniform clearly depicts someone not deserving of the rank of E-5 in the Navy.”

960207:	Commander, Marine Forces Reserve, directed the Applicant's discharge with a general (under honorable conditions) by reason of commission of serious military or civilian offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960216 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due the commission of a serious offense.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his violations of UCMJ Articles 91, contempt or disrespect toward a superior petty officer and Article 134, wearing an unauthorized Dive Qualification Insignia.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to commission of a serious offense on 19951222 with a least favorable characterization of under other than honorable conditions.  On 19951227, the Applicant waived his right to an administrative discharge board and did not object to his separation.  The Commanding Officer, Marine Aircraft Group 42, Detachment A, recommended that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  On 19960207, the Commander, Marine Forces Reserve, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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 dereliction in duty, contempt toward a superior petty officer, and wearing an unauthorized insignia.  The Board unanimously concluded that the Applicant’s misconduct reflects his failure to meet the minimum standards required for an honorable discharge.  Relief is not warranted.

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.  Although the Applicant alleges community work as a deputy sheriff, paralegal, and Federal law enforcement officer, as of this time, the Applicant has not provided any post-service 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, contempt, disrespect toward superior noncommissioned or petty officer, or Article 134, wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.

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