Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00403

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

 ex-MTSN, USN
Docket No. ND00-00403

Applicant’s Request

The application for discharge review received 000214, requested that the characterization of service on the discharge be changed to honorable and reason change to RE-3 or 2.  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 000928.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My name is D____ O. F____ and my active duty date in the United States Navy started on May 20, 1992.  I proudly served my country for 2 years, 3 months and 10 days.  At the time of my discharge I was a MTSN on the U.S.S. Florida.  My date of my separation was August 29, 1994.  I regret that this was due to misconduct on my part.  I am writing to you today to persuade you to consider changing my character of service to Honorable discharge and my re-enlistment code to a 2 or 3.  This is necessary for my decision to rejoin the United States Navy.  Please understand that in my first active duty tour, I was young, single and not very responsible.  I have made some mistakes in the past, but I am coming to you now in order to try and correct them.  I have been on my current job for 2 1/2 years with an excellent record.  I would like a second chance to have the same record in with the Navy.  I am extremely motivated to serve my country in the best way that I know how.  My family is very supportive of my decision to make the U.S. Navy my career.  I hope that you will be too.  I have bee married to L____ for over five years and have two beautiful daughters, C____ is three and A____ is six months.  My family means everything to me and I would like to give them a life full of love and security.  I know that the Navy can give us that life.  Please consider the above request to change my character of service and my re-enlistment code.  I look forward to the opportunity to correct the mistake of my past and proudly serve my country once again.

Documentation

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

Character Reference Letter (7)
Employment Reference Letters (4)
Letter from Applicant
Copy of DD Form 214
Copy of Child Support Calculation Summary (4 pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	910926 - 920519	COG

Period of Service Under Review:

Date of Enlistment:  920520		Date of Discharge:  940829

Length of Service (years, months, days):

	Active:    02  03  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  53

Highest Rate:  MT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.40 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Navy Pistol Marksman Ribbon 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940419:	Civil conviction at Poulsbo District Court for being in physical control of a motor vehicle while under the influence of intoxicants and/or drugs on 940405.
	Sentence: 365 days in jail (364 suspended), and to pay $1000.00 fine ($400.00 stayed for 6 months).

940516:	NJP for violation of UCMJ, Article 81: Conspiracy on or about 940405, violation of UCMJ Article 92: Failure to obey order or regulation on or about 940405.
	Award:  Forfeiture of $300.00 per month for 2 months, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

940630:	NJP for violation of UCMJ, Article 86: Absence without leave on or about 0600, 940623 to 0945, 940623; violation of UCMJ Article 134: Drunkenness-incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor on or about 0945, 940623 was incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $200 per month for 2 months, vacation of suspension of CO's NJP on 940516 and reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

940701:	Medical Evaluation indicates applicant is alcohol dependent and recommended that applicant attend Level III.  Applicant executed page 13 electing not to be separated via VA Hospital [EXTRACTED FROM CO'S MESSAGE].

940705:	DAAR submitted [EXTRACTED FROM CO'S MESSAGE].

940708:	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 civil conviction as evidenced by your conviction in Poulsbo District Court on 940419 and all punishments under the UCMJ in your current enlistment, including the non-judicial punishments awarded 940516 and 940630.

940708:  	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a statement on own behalf.

940714:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense and civil conviction.

940726:	BUPERS directed the applicant's discharge general under 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 940829 general under 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 the applicant’s issue 1, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  In addition, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

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 (D).  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), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) 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.  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 9, effective 
22 Jul 94 until 02 Oct 96, 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 [e.g., 92, failure to obey an order] 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

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/A9241/A9301/A9307