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

 ex-SA, USNR
Docket No. ND02-00445

Applicant’s Request

The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government and a reenlistment code change to RE-1 and corresponding separation program number/designator.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021104.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member avers that family problems contributed to and sufficiently extenuated his misconduct of record to warrant an honorable discharge.

2.  (Equity Issue) This former member further proffers that his overall service record warrants a fully honorable characterization of service with a narrative reason change to convenience of the government.

3.  (Equity Issue) This former member further request that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  900717		Date of Discharge:  921218

Length of Service (years, months, days):

	Active:    02  03  00
	Inactive:  00  02  01

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  27

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (2)	Behavior:  2.50 (2)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Bronze Star

Days of Unauthorized Absence:  85

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

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

Chronological Listing of Significant Service Events:

900919:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

900925:	Retention Warning: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

901124:	Retention Warning: Advised of deficiency (4th Class swimmer qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

920210:	Applicant to unauthorized absence on 0600, 10Feb92.

920211:	Applicant missed ship's movement.

920212:	Applicant from unauthorized absence 1706, 12Feb92 (2 days/surrendered).

920304:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from unit, (2) Absent from unit, violation of UCMJ, Article 87: Missing movement.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

920727:	Applicant to unauthorized absence 0700, 27Jul92.

920924:	Applicant from unauthorized absence 2200, 24Sep92 (59 days/surrendered).

921017:	Applicant to unauthorized absence 0700, 17Oct92.

921111:	Applicant from unauthorized absence 0248, 11Nov92 (24 days/surrendered).

921121:	NJP for violation of UCMJ, Article 86 (2 specs): Absence from place of duty, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $440.25 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

921121:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from Commanding Officer's message dated 29Nov92.]

921121:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  [Extracted from Commanding Officer's message dated 29Nov92.]

921129:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921203:	BUPERS directed the applicant's discharge under other than honorable conditions 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 921218 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Responding to the Applicant’s request to change the Narrative Reason for Separation, the Board, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents the commission of a serious offense for which the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation or separation code would be inappropriate.  Relief denied.

Concerning the Applicant’s request for a change in his reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  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.  However, only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Relief denied.

In the Applicant’s first issue, he considers his family problems at the time of his discharge severe enough to warrant clemency.  The NDRB recognizes that serving in the Navy is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most sailors serve honorably and well and therefore earn honorable discharges.   In fairness to those sailors, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due. While the NDRB sympathizes with the Applicant’s family problems, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

The Applicant’s second issue attempts to persuade the Board that his overall service record merits a honorable characterization of service.  After reviewing the member’s entire record, the Board came to a different conclusion.  The Board found that the member’s characterization of service was appropriately stated as other than honorable.  Relied denied.

The Applicant’s final issue was based on the provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided no documentation of his post-service conduct.  The Applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE RM 309
		Washington Navy Yard DC  20374-5023