Author: CAP
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Docket No. ND99-00907

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

 ex-GSMFA, USN
Docket No. ND99-00907

Applicant’s Request

The application for discharge review, received 990624, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000323.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

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:   USN 		940615 - 961217	HON
	Inactive: USNR (DEP)	940301 - 940614	COG

Period of Service Under Review:

Date of Enlistment:  961218		Date of Discharge:  980921

Length of Service (years, months, days):

	Active:    01  09  04
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  63

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER, SSDR, AFSM, AFEM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970617:	Retention Warning: Advised of deficiency (Making unauthorized long distance telephone calls on a U.S. Government owned telephone in the amount of $32.50.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
980618:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ Article 91: Disobey lawful order of PO1.
	Award:  Forfeiture of $615 per month for 2 months, restriction and extra duty for 45 days, reduction to GSMFN.  No indication of appeal in the record.

980709:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty.
	Award:  Restriction and extra duty for 30 days, reduction to GSMFA.  No indication of appeal in the record.

980804:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

980804:  	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.

980905:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.  Commanding officer’s comments: (verbatim): FA (applicant) has disregarded authority on and off since reporting onboard in 1994.  During a previous enlistment FA (applicant) was punished at CO's NJP in February 1995, June 1995.  During his current enlistment he has received punishment at CO's NJP on three separate occasions in July 1998, June 1998 and February 1996.  FA (applicant) was awarded 30 days CCU, June 1995, in an attempt to provide him the opportunity to become a productive sailor.  CCU appeared to have been effective for a short timeframe, however his performance continued to decline.  FA (applicant) was punished at CO's NJP again in February 1996 and in June and July 1998.  Since FA (applicant) could no longer function as a GSM3 because of his long pattern of misconduct, I initiated action to remove his GS designation.  I do not believe FA (applicant) possesses any potential for future naval service.

980812:	COMSERVFORSIXTHFLT 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 980921 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant introduced no decisional issues for consideration by the Board.  The discharge was proper and equitable.  Relief denied.

Although not raised as an issue, the following information is provided for the benefit of the applicant.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service.  The NDRB reviews the propriety  and equity of each applicant’s discharge to determine if an error has occurred during the discharge process.  Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Those factors include but are not limited to the following:  Evidence of continuing education, a verifiable employment history, documentation of community service, certification of non-involvement with civil authorities and proof of not using drugs.  The applicant has not provided any information that demonstrates he has established a reputation of good character, which would warrant upgrading his discharge.  Although relief has been denied, the applicant is encouraged to begin establishing a reputation of good character and document his accomplishments.  Documentation is a must to be considered for post-service clemency.    He remains eligible for a personal appearance hearing provided an application is received at the NDRB within fifteen years from the date of his discharge.  Legal representation is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, Disobeying a lawful order of a Petty Officer, 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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  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.

E.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0100/A9500/A9217/A9221