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

FOR OFFICIAL USE ONLY

ex-FA, USN
Docket No. ND06-00690

Applicant’s Request

The application for discharge review was received on 20060410.  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 20070301.  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.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: Isolated incident.

Documentation

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

Applicant’s DD Form 214 (Service 2)
Applicant’s DD Form 215 (Service 2)
Letter from Applicant, dtd March 27, 2006
Letter of Recommendation from R_ S_, dtd March 27, 2006
Letter of Recommendation from C_ P_, dtd March 27, 2006
Letter of Recommendation from J_ L. G_, dtd March 27, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19901101		Date of Discharge:  19921014

Length of Service (years, months, days):

	Active:    01  07  09  
	Inactive:  00  04  05

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  8 (2 years active duty)

Education Level:  12				AFQT:  52

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (1)		Behavior:  3.4 (1)		OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Battle “E” Ribbon, National Defense Service Medal, Southwest Asia Service Medal with Bronze Star.

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: 

910306:	Commenced active duty for a period of 24 months.

920807:	Applicant to unauthorized absence from 0730 to 0830 (surrendered).

920821:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: UA from 1513, 920818 to 0800, 920819.
	Specification 2: UA from 1600, 920819 to 0730, 920820.
Violation of UCMJ, Article 91 (2 specs):
Specification 1: On, 920818 willfully disobeyed a lawful order from her superior petty officer.
Specification 2: On, 920818 willfully disobeyed a lawful order from a Master Chief Petty Officer.
Violation of UCMJ, Article 107: Making a false official statement on 920818.
	Award:  Restriction for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

920827:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.

920828:	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 the right to submit statement in own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.  Applicant objected to the separation.

920911:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense as evidenced by your nonjudicial punishment on 920821 for willingly disobeying a lawful order from your superior Petty Officer and Master Chief Petty Officer.

920917:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct – commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921014 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 Board presumed regularity in the conduct of governmental affairs (E).

Equity – Isolated incident: The Applicant requests an upgrade contending that her discharge was based on “one isolated incident, went to captains mass once in 24 months of service.”  When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in service was not honorable.  Indeed, the Applicant’s records contain nonjudicial punishment proceedings on 19920821 for violation of UCMJ Article 86 Unauthorized absence (2 specifications), Article 91 Willfully disobeying (2 specifications), and Article 107 False official statement.  Violation of Articles 91 and 107 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial and typically warrants a characterization of service as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service.  Relief denied.

While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted three character references for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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.  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 Willfully disobeying and 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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