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

 ex-MSSN, USN
Docket No. ND00-00287

Applicant’s Request

The application for discharge review, received 991228 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 000810.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Why was my request for a "closed mast" put on hold till after they sent me to NJP.

2.  Why was I punished twice for the same offenses 3 months apart.

3.  Why did everything come about after I started a formal grievance procedures.

4.  Why was my navy appointed lawyer transferred immediately after Admin Board.

Documentation

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

Letter to BCNR (2pgs)
Copies of Allotment Action Request (2)
Letter from applicant's wife (4 pgs)
Letter from applicant's daughter's mother
Copy of Record of Counseling (2)
Verbal Counseling Letter from MS1(SW) R___ L. W_____
Letter from MSCC(SW) C. B. L_____ in reference to Late Child Support  Payment 
Letter from applicant
Copies of Voluntary Statements from applicant (2)
Letter from Norfolk Juvenile and Domestic Relations District Court (2pgs)
Copy of daughter's Birth Certificate and Social Security Card
Copies of Discharge Information (6pgs)
Letter from applicant to Mr. M___ P____
Letter from applicant to Commanding Officer, Naval Submarine Base, Kings Bay
Copy of Additional Charge Sheet
Copy of Appointment of Administrative Board Letter
Letter of Complaint against Commanding Officer
Copy of Report and Disposition of Offenses
Copies of Special Request Authorization Chits (3)
Letter to Congressman L_____
Letter from LN1 E______
Statement from applicant
Copy of Evaluation Report & Counseling Record
Dates and Events Summary (3pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			850709 - 890708	HON
		   USNR		890709 - 920426	HON
		   USN			920427 - 960420	HON
	Inactive: USNR (DEP)	841027 - 850708	COG

Period of Service Under Review:

Date of Enlistment:  960421		Date of Discharge:  970718

Length of Service (years, months, days):

	Active:    01  03  00
	Inactive:  None

Age at Entry:  17			Years Contracted:  2 

Education Level:  12			AFQT:  42

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.14

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, Pistol Expert, Rifle Expert 

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 3630605.

Chronological Listing of Significant Service Events:

960421:	Re-enlisted at NAVSUBASE KINGS BAY GA for 2 years.

970306:	NJP for violation of UCMJ, Article 134: Debt dishonorably failing to pay child support 960401-960430 and 960501-960531 (2 Specs), wrongfully obtaining telephone services (2 Specs).
	Award:  Forfeiture of $697.35 pay per month for 2 months, restriction for 30 days, reduction to E-3.  No indication of appeal in the record.

970326:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Commanding Officer's NJP on 970306, for violation of UCMJ, Article 134, failure to pay just debts of child support; and Violation of UCMJ Article 134, obtaining services under the false pretenses by using another service member's BEQ telephone PIN to make long distance phone calls.

970402:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970611:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970630:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):   In regard to the letter of deficiencies submitted as enclosure (1).  On 10 June 1997, MSSN___(applicant) appeared before an Administrative Discharge Board.  The issue regarding whether or not Seaman___(applicant) had been properly brought before the admin board was argued, enclosure (2) refers.  MSSN___(applicant) was properly informed that he was being processed for Administrative Discharge under the Notice of Administrative Board Procedure Proposed Action; for misconduct due to commission of serious offenses.  MSSN___(applicant) was not notified for misconduct due to a pattern of misconduct where he would have been required to have a page 13 counseling warning.  MSSN___(applicant) engaged in misconduct due to a commission of serious offenses not once, but twice within a period of one year and two separate findings with regard to the misconduct were made.  I concur with the board’s findings and recommendations in this case.  I recommend that MSSN___(applicant) be separated from the naval service with a discharge characterized under other than honorable conditions.

970715:	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 970718 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).

In response to applicant’s issues 1-4, the Board found that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

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 the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant 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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 134, for dishonorably failing to pay debt, 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 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