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

FOR OFFICIAL USE ONLY

ex-PNSN USN
Docket No. ND06-0489

Applicant’s Request

The application for discharge review was received on 20060214.  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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206.  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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Complete service not considered.
Equity:  Command negligence.
Equity:  Personal situation.
Equity:  Post-service conduct.

Documentation

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

Applicant’s statement, dated February 3, 2006
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19820129 - 19820909	COG
	Active:   USN	19820910 - 19850908	HON
	Inactive: USNR (DEP)	19851017 - 19851204	COG	
	Active:   USN	19851205 - 19901207	HON

Period of Service Under Review:

Date of Enlistment:  19901207		Date of Discharge:  19930323

Length of Service (years, months, days):

	Active:    02  03  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  3

Education Level:  12				AFQT:  80

Highest Rate:  IS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (4)	Behavior:  3.7 (4) 		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Southwest Asia Service Medal w/ 2 Bronze Stars, Sea Service Deployment Ribbon (3), Kuwait Liberation Medal, Armed Forces Expeditionary Medal, National Defense Service Medal, Second Good Conduct Award for Period Ending 91Jan15, Battle “E” Ribbon, Navy Unit Commendation, Navy Achievement Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

901207:	Applicant reenlisted for a term of 3 years.

920305:	Retention Warning:  Advised of deficiency (Unprofessional behavior:  Failure to complete work in a timely manner.  Military bearing:  Disrespectful to superior when questioned about work assignments repeatedly lied in order to cover up failure to complete work assignment as required.)  notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920430:	NJP for violations of UCMJ.  Article 92:  On 920227 Was derelict in duty for negligently failing to complete processing of service record on member transferring to Fleet Reserve.  Article 107: False statement, to wit, all past work had been completed.
	Award:  Restriction for 30 days and reduction to E-4.  No indication of appeal in the record.

920908:	Applicant placed on Petty Officer Quality Control program and informed failure to improve will result in ineligibility for reenlistment.

930202:	NJP for violation of UCMJ.  Article 92:  On or about December 1992 was derelict in performance of duties in that he, as terminal area security officer, allowed access to the source data system to individuals without prior approval of the OIC, PERSOFF or duty officer.
	Award:  Restriction for 14 days and reduction to E-3.  No indication of appeal in the record.

930222:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

930224:	Applicant advised of rights and having consulted with counsel elected to submit a statement and obtain copies of documents forwarded to the separation authority.  

930305:	Commanding Officer recommended discharge with a general (under honorable conditions) character of service by reason of misconduct due to the commission of a serious offense as evidenced by service record entries.

930311:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) character of service 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 19930323 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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).  

The Applicant contends that his discharge is inequitable because his complete record of service was not taken into consideration.  The Board found the Applicant’s issue without merit.  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 or general 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 two nonjudicial punishment proceedings for violations of Articles 92 and 107 of the UCMJ.  Violations of Article 92 and 107 of the UCMJ are 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.

The Applicant implies his discharge is inequitable because personal problems caused his misconduct.  The Applicant also implies that the misconduct which precipitated his discharge would not have occurred had his chain-of-command been proactive in dealing with the Applicant’s personal issues.  While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show command negligence or that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief is not warranted.  
Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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.  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 92, failure to obey order/regulation or Article 107, false official statement.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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