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Docket No. ND01-00911

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

 ex-BM2, USN
Docket No. ND01-00911

Applicant’s Request

The application for discharge review, received 010703, requested that the characterization of service on the discharge be changed to honorable conditions and the reason for the discharge be changed to “Honorable & Honorable".  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Dear Chairperson:
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 note the request of the appellant of an upgrade of his General, Under Honorable Conditions discharge to that of Honorable, allowing for equitable relief. The records reflect the FSM served in the United States Navy from February 26, 1988 to October 9, 1998, with a narrative reason for separation as misconduct.  This reflects a 10 year 7 month period of active service with two (2) Good Conduct Medals, (2) letters of commendation, with numerous other decorations and citations.  The quality and length of this good service must be taken into consideration.  Also reflection must given to the state of the FSM's mind, in that he suffered at the time from family problems of, 1. separation, as the family lived in another state, and 2. his spouse was abusing drugs, neglecting their children and financial obligations, and these circumstances affected the FSM's ability to serve satisfactorily. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations. 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
Letter from Pastor of Monument House of Faith dated July 17, 1998
Copy of request for reassignment for humanitarian reasons dated July 28, 1998
Copy of letter from lawyer to applicant's wife dated April 23, 1998
Copy of appearance bond dated May 1, 1998
Copy of arrest an booking report for applicant's wife
Copy of BUPERS Order dated May 28, 1995
PART II - SUMMARY OF SERVICE

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

	Active:   USN 		810629 - 880225	HON
		   USN			880226 - 921112	HON
		   USN			921113 - 951014	HON
	Inactive: USNR (DEP)	810620 - 810628	COG

Period of Service Under Review:

Date of Enlistment:  951015		Date of Discharge:  981009

Length of Service (years, months, days):

	Active:    02  11  25
	Inactive:  None

Age at Entry:  32			Years Contracted:  2 (14 months extension)

Education Level:  12			AFQT:  31

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.33 (3)		OTA:  2.61

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (6), Letter of Commendation (2), GCM (2), NDSM, SASM (2), ESWI, BER (3), USCGSOR, SECNAV Letter of Commendation, CGUC, HSM, MUC, KLM

Days of Unauthorized Absence:  14

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

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

Chronological Listing of Significant Service Events:

970916:	Applicant's enlistment extended for 14 months.

Undated:	Violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 107: False official statement; violation of UCMJ, Article 132: Making a false claim.  [Extracted from Commanding Officer's letter dated 8 October 1998.]

981008:	Commanding officer directed discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): Petty Officer (applicant's) performance at this command has been marginal.  He has demonstrated a lack of initiative, military bearing and character.  I am separating Petty Officer (applicant) with a characterization of discharge of general under honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981009 general (under honorable conditions) for misconduct due to commission of a serious offense (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).

In response to the applicant’s issue:  The Board considered the applicant’s service record and documentary evidence he provided the Board.  The basis of the discharge was the applicant’s NJP for violation of UCMJ Article 107- False Official Statement and Article 132- Making a False Claim.   The policies and procedures under which the applicant was discharged do not differ in material respects from policies and procedures currently applicable on a service wide basis for discharges due to the same misconduct.  The NDRB determined the General (Under Honorable Conditions) discharge was equitably and properly assigned.  Relief is not warranted.

The following is provide for the benefit of the applicant.  There is no law or regulation which allows for an unfavorable discharge to be upgraded, based solely on the passage of time, or good conduct subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error existed in this case.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Documentation to support a claim of post-service conduct as reason for a discharge up grade must be provided to the Board.   The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Therefore, relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided an application is received within 15 years from the date of discharge.  Representation at personal appearance hearing 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 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

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:   A6730/A9217/A9203/A9205/A9303/A9221