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

FOR OFFICIAL USE ONLY

  ex-DN, USN
Docket No. ND05-01075

Applicant’s Request

The application for discharge review was received on 20050613.  The Applicant requests that his 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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of all 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 characterization of the 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 attached letter: 

     “I J_ L. H_ Jr. (Applicant) SS#_ make this statement to the Naval Council of Personnel Boards, as I am requesting an upgrade in my military discharge.  On Aug. 26th 2002 I was awarded a General Discharge (Under Honorable Conditions).  The Narrative reason for separation was Misconduct; commission of a serious offense.  At my EDRB the CMC over the phone told me the charge was perjury.  I lied to my chain of command about how I handled a situation that led to me calling into work twice in one week for the same reason.  My car was vandalized twice by I believe to be a friend of my ex-wife.  I enclosed all the reports that came with my record of the fact.  I feel as if my discharge was a bit harsh for just one charge and I feel like the command made their decision based on previous NJP’s that were isolated minor offenses.

     As a sailor and dental tech. I tried my hardest to succeed, but I just wasn’t equipped with the necessary skills to handle the stress load.  I was always bright student and very adaptable to different tasks.  All of my evaluation reports are enclosed that show my skills and abilities, but I was just not good enough.  So I ’m requesting an upgrade from General to Honorable because I gave my country 3 years 2 months and 20 days of the best service I possibly could.

     I would like to thank this council for your time and your consideration.

J_ L. H_ Jr. (Applicant)”

Documentation

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

Evaluation Report and Counseling Record, period; November 24, 1999 to July 15, 2000 (2 pages)
Evaluation Report and Counseling Record, period; July 16, 2000 to February 28, 2001 (2 pages)
Evaluation Report and Counseling Record, period; March 01, 2001 to July 15, 2001 (2 pages)
Evaluation Report and Counseling Record, period; December 19, 2001 to July 15, 2002 (2 pages)
Applicant’s Enlisted Qualification History (4 pages)
Statement from Applicant to DTC(AW) D_, undated
Statement from Applicant to DT1 G_, dtd July 16, 2002 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980911 – 19990608		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990609		Date of Discharge:  20020826

Length of Service (years, months, days):

	Active:    03 02 17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  43

Highest Rate:  DN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (5) 		Behavior:  2.6 (5) 		OTA:  3.05 (5) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Enlisted Surface Warfare Specialist, Enlisted Air Warfare Specialist

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

990610:	Retention Warning:  Advised of deficiency - fraudulent induction, failure to disclose required basic enlistment eligibility information:  
Disorderly conduct (fighting), Carthage, TX, paid $139; 
Disorderly conduct (fighting), Carthage, TX, paid $139; 
Marijuana 1 time, 5/99; 
Statement in record for possession of firearm charge false, member actually purchased gun on street and pulled on another.

991123:	Evaluation Report & Counseling Record for period 99 August 25 to 99 Nov 23 states:  Awarded NJP for violations of Article 86 (unauthorized absence), Article 92 (failure to obey other lawful written orders x 4 specifications), Article 117 (provoking speech), Article 128 (assault), and Article 134 (disorderly conduct).

010509:	NJP for violation of UCMJ, Article 92 (failure to obey a lawful order), Article 107 (false official statement), and Article 134 (false pass).
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days (suspended 5 days restriction and extra duties for six months).  No indication of appeal in the record.

010519:	Retention Warning:  Advised of deficiency i.e. NJP on 09 May 2001 for violations of Article 92 (failure to obey a lawful order), Article 107 (false official statement), and Article 134 (false pass), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010815:	Commanding Officer’s NJP for violations of UCMJ, Article 134 (communicating a threat).

020108:	Arrival for duty at Naval Dental Clinic, Ingleside Tx.

020220:	Retention Warning:  Advised of deficiency i.e. NJP on 15 Aug 2001, for violation of UCMJ, Article 134 (communicating a threat), and NJP 09 May 2001, for violations of UCMJ Article 92 (failure to obey a lawful order), Article 107 (false official statement), and Article 134 (false pass), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020729:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

020805:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a written statement.

020806:	Commanding Officer, Naval Dental Center Gulf Coast, directed Applicant’s discharge with a general (under honorable conditions) by reason of misconduct commission of a serious offense. 

020911:	Commanding Officer, Naval Dental Center Gulf Coast, forwarded the administrative discharge package to CNPC.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020826 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct which would warrant a punitive discharge if tried by special or general court-martial has occurred.  When the service of a member of the U.S. Navy has met the standard of 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 outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by three nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence), Article 92 (failure to obey order, 5 specifications), Article 107 (false official statement), Article 117 (provoking speech), Article 128 (assault), and Article 134 (disorderly conduct, false pass, and communicating a threat).  Each violation of Articles 92 (failure to obey), 107 (false official statement), 128 (assault), and 134 (false pass and communicating a threat) is defined by reference (A) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  Applicable 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.  Separation under these conditions generally results in a less than honorable characterization.  Relief is not warranted.

The Applicant contends that his discharge was improper as he considers the discharge to be further punishment from previous NJP’s.  For the edification of the Applicant, administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.  The Applicant’s issue is without merit.  Relief denied.  

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.  The Applicant has not provided documentation for the Board’s consideration.

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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION 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 violations of the UCMJ, Article 92 (failure to obey order), Article 107 (false official statement), Article 128 (assault), and Article 134 (false pass, communicating a threat).

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