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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00975

Applicant’s Request

The application for discharge review was received on 20060719.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area; however, subsequently the Applicant consented to a documentary record review with the understanding that he retained the right to a personal appearance hearing, regardless of the results of the documentary review, on the condition that a new application for review be received by the Board within 15 years of the date of discharge.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary record discharge review was conducted in Washington, D.C. on 20070628.  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 Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s Issues, as summarized by the Board

1.  Did not commit the misconduct for which discharged.
2.  Characterization not warranted by overall service record.
3.  Desire veterans benefits.

Documentation

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

Letter from Applicant dtd, March 15, 2006
Applicant’s DD Form 214 (Service 7)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
	
	Inactive: USNR	19871121 - 19880314	COG
	Active:   USN	19880315 - 19910203	HON

Period of Service Under Review:

Date of Enlistment:  19910204		Date of Discharge:  19930730

Length of Service (years, months, days):

	Active:    02  05  26  
	Inactive:  00  00  00

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  25

Years Contracted:  6 

Education Level:  12				AFQT:  33

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)		Behavior:  3.8 (2) 			OTA:  3.80

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal, National Defense Service Medal, Good Conduct Award for period ending 92MAR14.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

910204:	Reenlisted this date for a term of 6 years.

910417:	Applicant acknowledged having read and understood OAKRIDGEINST 5370.2 regarding proper conduct of male-female relationships among OAK RIDGE personnel.

921021:	Retention Warning:  Advised of deficiency (Paying your just debts.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930428:	NJP for violation of UCMJ, Article 134: Did in an indecent manner, expose his penis for public view in front of a female shipmate on or about 930426.
	Violation of UCMJ, Article 92: Disobey the lawful order that no male shall wake up females and no females shall wake up males onboard the Oak Ridge ARDM ONE on 930426.
	Award:  Restriction and extra duty for 30 days, reduction in rate (suspended for 6 months).  Not appealed.

930504:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation UCMJ Article 134 and Article 92.

930507:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930527:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation UCMJ Article 134 and Article 92.

930623:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930730 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).  

Issue 1 (Propriety).  The Applicant asserts that he did not commit the misconduct for which he was discharged.  The Board found credible evidence in the record that the Applicant did commit the misconduct.  The command conducted a thorough investigation into the allegation against the Applicant.  He was afforded all procedural rights during nonjudicial punishment (NJP), advised of his right to appeal the NJP and provided an opportunity to challenge his proposed separation at an administrative discharge board.  The Applicant chose not to dispute the allegation against him then, and his uncorroborated assertion to the Board is not sufficient to overcome the substantial and credible evidence of misconduct.  Relief denied on this issue.

Issue 2 (Equity).  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 aspects of a servicemember’s performance or conduct constitute a significant departure from the standards of behavior expected of member’s of the Naval service.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  Both of the Applicant’s violations constitute a serious offense for which a punitive discharge is authorized at special and general court-martial.  Under the circumstances, the Board found the Applicant’s misconduct to be a significant departure from acceptable behavior, and extremely prejudicial to good order and discipline.  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.

Issue 3.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits, and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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.    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 or regulation, and Article 134, Indecent exposure.

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