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Docket No. ND00-01056

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

ex-MSSR, USN
Docket No. ND00-01056

Applicant’s Request

The application for discharge review, received 000915, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the Disabled American Veterans 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 010301.  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 (verbatim)

1.  An upgrade can and will enhance my resume

2.  My discharge was inequitable because it was based on one isolated incident in 26 months.

3.  An upgrade to my discharge would give me the option of possible reenlistment.  I need my RE code change

4.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

5.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

6.  I received awards and decorations.

7.  I received letters of recommendation.

8.  My record of promotions showed I was generally a good service member.

9.  There were other acts of merit.

10.  I have been a good citizen since discharge.

11.  My ability to serve was impaired by my youth and immaturity.

12.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to set forth the request as established by the FSM's application as follows; change of discharge from Under Other Than Honorable General, Under Honorable Conditions or Honorable, and a change of his RE code to one that would allow for re-enlistment.

A review of the records reflects the FSM served in the United States Navy from 9-12-88 to 11-20-90, until his discharge which resulted from misconduct.

As noted by the FSM he has cleaned up his life, and spends his spare time helping those in his community.  He maintains that his current discharge is based on one isolated incident, that all his good service and letters of recommendation, and his good proficiency marks were not given proper consideration.  He seeks equitable relief in this matter, and asks that clemency be utilized as it would be an injustice for him to continue to suffer the adverse effects of this current discharge.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of DD Form 214
Character reference from Cleveland Food Bank, undated
Character reference, undated
Character reference, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880331 - 880911	COG

Period of Service Under Review:

Date of Enlistment:  880912		Date of Discharge:  901120

Length of Service (years, months, days):

	Active:    02  02  09
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  26

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (2)	Behavior:  2.50 (2)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  62

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:

900308:	Applicant to unauthorized absence 1000, 8Mar90.

900312:	Applicant declared a deserter.

900509:	Applicant apprehended by SHOPAT 0830, 9May90.  Returned to military control 1044, 9May90 (62 days).

900720:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missing ship's movement.
	Charge III: violation of the UCMJ, Article 92 (2 specs):
	Specifications: Disobeying a lawful order.
	Finding: to Charge I, II and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $540.00, CHL for 30 days, reduction to MSSR.
	CA action 901010:  Sentence approved and ordered executed.

900827:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900827:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

901018:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

901023:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

901101:	Message from COMSUBRON EIGHT:  IRT Ref A: SNM has elect admin board.  Written on message: PHONCON on 8Nov90 btwn LT K/YN1 R_ CMD was wrongly informed by JK that mbr had right to an Admin Bd after he signed LON/SOA.  I informed ____  otherwise.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 901120 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 the applicant’s issue’s 1 and 3, the Board has no obligation to change the applicant’s discharge in order to enhance his resume.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE‑5, Washington, DC  20380-3001.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied concerning these issues.

In response to applicant’s issue 2, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 5, 6, 7, 8, and 9, the Board found that the applicant’s enlisted performance evaluation averages were not that good, he received no decorations, no awards or letters of recommendation were noted on the applicant’s microfiche or were submitted, the highest rate attained by the applicant was seaman apprentice, and finally no “other acts of merit” were located in the applicant’s service record.  Relief denied on all issues.

In response to applicant’s issue 11, the Board found that the applicant's age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, 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 response to applicant’s issues 4 and 10, and the applicant’s representatives issue 12, 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 three character references pertaining to his community service as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, 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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 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/A9455/A9235