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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00521

Applicant’s Request

The application for discharge review was received on 20060301.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293; however, his application includes documents indicating representation by the American Legion.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070315.  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 by reason of misconduct due to commission of a serious offense.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Record of Service, Net Active Service This Period, should read:  “02  02  25,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Equity:  Characterization not warranted by overall service record.
	  Post-service conduct mitigates characterization.

Documentation

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

Ltr from Applicant, dtd August 31, 2005
Applicant’s DD Form 214  (Service 2)
Applicant’s DD Form 215
29 pages from Applicant’s Service and Medical Records
Ltr from S_ M_, Office Manager, C-MAR America Inc., dtd March 16, 2005
Ltr from L_ S_, Human Resources Director, S_ Towing Company, Inc., dtd June 3, 2003
Temporary Employment Reference, dtd March 24, 2005
U.S. Merchant Mariner’s Document, expires August 1, 2007  (2 pages)
Ltr from A_ M. H_, Human Resources, SeaBulk Offshore, Ltd., dtd May 3, 1998  (2 pages)
International Certificates of Vaccination  (5 pages)
Applicant’s Immunization record, HIV-AB Test Result, dtd October 22, 1991
Applicant’s U. S. Merchant Marine Officer License, dtd August 1, 2002
Certificate for completed course in Helicopter Landing Officer, dtd July 21, 1999
Character Reference ltr from Rev P_ E. H_, undated
Ltr from J_ Y_, Operations Manager, R_ Maritime LLC, dtd November 21, 2003
Ltr from W_ T. S_, VP- Human Resources, C_ B_ Company, Inc., dtd May 3, 2002
Ltr from J. R_ M_, Master DB 101, J. R_ M_, Inc, dtd February 23, 1999
Ltr from S_ J. K_, Vice President, McAllister Towing of New York, LLC., dtd February 22, 2002
Ltr from R. S_, Military Review Boards, Representative, The American Legion, dtd February 21, 2006
American Legion Statement, dtd January 26, 2007 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19891028 - 19900806	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900807		Date of Discharge:  19921101

Length of Service (years, months, days):

	Active:    02  02  25  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  26

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (2) 	Behavior:  2.6 (2) 		OTA:  3.20

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Medal, Armed Forces Expeditionary Medal, Kuwait Liberation Medal, Combat Action Ribbon, Navy Unit Commendation, Coast Guard Special Operations Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920116:	NJP for violation of UCMJ, Article 134:  Wrongful disposition of a military ID card.
Violation of UCMJ, Article 92:  Dereliction in the performance of duties.
	Award:  Forfeiture of $440.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

920117:	Retention Warning:  Advised of deficiency (NJP of 920116 for violation of 134:  Wrongful disposition of a military identification card, and NJP of 920116 for violation of Article 92:  Dereliction in the performance of duties).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920504:	Counseled for deficiencies in performance and conduct (On the morning of 920427, you were stuck at Nimitz Gate with a taxi waiting for you to pay his fare, which resulted in you failing to report to work at the prescribed time posted in the Plan of the Week and Plan of the Day, both of which are read at morning quarters).  Necessary corrective actions explained, disciplinary and discharge warning issued.

920928:	NJP for violation of UCMJ, Article 134:  Indecent acts with another.
	Award:  Forfeiture of $392.00 pay per month for 1 months, reduction to E-2.  No indication of appeal in the record.

921008:	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 a commission of a serious offense as evidenced by wrongful disposition of a military identification card, dereliction in the performance of duties and homosexuality due to member engaging in homosexual acts under BUPERSMAN Articles 3630600 and 3634000.

921008:	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.  Applicant did not object to this separation.

921015:	Commanding Officer, USS WORDEN, recommended discharge by reason of misconduct due to a commission of a serious offense as evidenced by wrongful disposition of a military identification card, dereliction in the performance of duties and homosexuality due to a member engaging in homosexual acts under BUPERSMAN Articles 3630600 and 3634000, with a characterization of service as under other than honorable conditions.

921022:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921101 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).  

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 formal written counseling for unauthorized absence, a retention warning and 2 nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  Both offenses for which the Applicant was punished as violations of Article 134 are serious offenses for the purposes of administrative separation.  (The Board noted that the offense for which the Applicant received his second NJP might have been more properly alleged as a violation of Article 125 of the UCMJ – also a serious offense for the purposes of administrative separation.)  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.

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 service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  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 further 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), effective 15 Aug 91 until 
04 Mar 93, 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 134, False or unauthorized pass offenses, and Article 134, Indecent acts with another.

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