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

Docket No. ND01-00655

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

 ex-MS3, USN
Docket No. ND01-00655

Applicant’s Request

The application for discharge review, received 010410, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to [left blank].  The applicant requested a documentary record discharge review.  The applicant designated the Disabled American Veterans organization the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127.  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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues verbatim:

1.  I, B_ D. P_ (Applicant) former (MS3 P_, xxx-xx-xxxx) am requesting to have my discharge type change from General (Under Honorable Conditions) to Honorable.  I believe that I was not represented right or fairly.  Because if I was I would be still in the Navy my home and life.  I had accomplish a lot more than I ever had.  I was honest and admitted what I did hoping to get help not discharged.  And that's what bothers me most.  I though we are to help each other (our shipmates) with problems no matter what they may be (the ones that ask for it), and not take the easy way out and discharge them.  There and had been got sailors I think that s been discharge instead of being help and I'm one of them.  Thanks for reviewing my request and look at the good not the bad.

Submitted by DAV:

2.  The record reflects the FSM served in the United States Navy from January 16, 1990 to December 28, 1998, at which time he received the discharge as noted above.  Additionally, during this time he received a good conduct medal, and a combat action ribbon for this service period.

3.  The FSM requests equitable relief in the manner as noted above, he believes the discharge currently held is unfair and given without due consideration to his previous good service and high proficiency marks.  It is the understanding of this agency that prior military service and type of discharge received or outstanding post service conduct to the extent that such maters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review.  See, SECNAVINST 5420.174C.9.3.

4.  As the representative this service requests consideration be given to equitable relief in the form of an Honorable discharge for this FSM, who continues to be a productive member of society.  With all this in mind, we believe that strong consideration should be given to the upgrade of his particular discharge.  We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  

Documentation
The applicant's service record was never located by the Board, therefore, the medical record and the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Enlisted Performance Eval from previous enlistment (5 evals)
Enlisted Performance Eval from current enlistment (8 evals)
Navy and Marine Corps Achievement Metal dtd 1 Apr 98

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		900116 - 940103
	Inactive: USNR (DEP)	891201 - 900115

Period of Service Under Review:

Date of Enlistment:  940104		Date of Discharge:  981228

Length of Service (years, months, days):

	Active:    04  11  25
	Inactive:  None

Age at Entry:  36			Years Contracted:  6

Education Level:  12			AFQT:  38

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (2)	Behavior:  3.8 (2)		OTA:  3.8   (4.0 evals)
		 3.86 (7)		      2.29 (7)			3.23  (5.0 evals)

Military Decorations:  NAM

Unit/Campaign/Service Awards:  SSDR (w/Bronze Star), NDSM, SWASM (w/2 Bronze Star), CAR, KLM, NUC, GCM, MUC (w/Bronze Star), KLM, Battle "E" Ribbon, AFEM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

[Service Record missing and the applicant did not respond to the Board regarding a copy of the admin discharge package.]

980527:	Evaluation Report & Counseling Report states eval submitted upon member's conviction of civil offense.  Civil conviction on 27 May 98, San Diego Municipal Court, for misdemeanor charge of Indecent Exposure. (Applicant signed the evaluation report.)

981228:	Evaluation Report & Counseling Report states eval submitted upon member's administrative separation from active naval service.  Member being separated from naval service following administrative separation board proceedings which found him guilty of the civil conviction for misdemeanor charge of Indecent Exposure.  Member has attended Family Advocacy counseling sessions and group meetings, and shown efforts towards resolving his personal issues. (Applicant signed the evaluation report.)

981228:	Applicant discharged with a General (Under Honorable Conditions) due to misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981228 with a General (Under Honorable Conditions) for misconduct due to civil conviction (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).

The applicant’s issue 1 states that he “was not represented right or fairly.”  The record shows the applicant was discharged after having an Administrative Separation Board for a civil conviction for Indecent Exposure.  The NDRB presumed regularity in the conduct of government affairs.  The applicant did not provide any evidence to substantiate his allegation that he was in any way improperly represented.  Relief based on this issue is not warranted.

The applicant’s issue 2 requests that the Board consider the applicant’s length of service and his awards and decorations.  The NDRB considered the applicant’s entire service record for the period under review (specifically his last enlistment), and found the negative aspects of service (a civil conviction for Indecent Exposure) outweighed his positive contributions.  The General discharge was properly and equitably assigned.  Relief is not warranted.

The applicant’s issue 3 requests an upgrade to the discharge based on SECNAVINST 5420.174C.9.3.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 15 Sep 99, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

B.  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.  

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 “afls10.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:  A6100/A9453/A9217/A9221/