Author: CAP
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Docket No. ND01-00979

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

 ex-MSSR, USN
Docket No. ND01-00979

Applicant’s Request

The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221.  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

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service records warrants separation under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881019 - 881128	COG

Period of Service Under Review:

Date of Enlistment:  881129		Date of Discharge:  920703

Length of Service (years, months, days):

	Active:    03  07  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.85 (4)	Behavior:  2.75 (4)		OTA:  3.05

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM with Bronze Star

Days of Unauthorized Absence:  39 

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:

890817:	NJP for violation of UCMJ, Article 86: Going from place of duty, violation of UCMJ, Article 92: Dereliction of duty.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

890817:	Retention Warning:  Advised of deficiency (Unauthorized absence and dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910325:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Violated a lawful general regulation on 16Feb91, (2) Failed to obey a lawful order on 16Feb91, violation of UCMJ, Article 108: Committed assault upon another service member on 16Feb91.
	Award: Forfeiture of $422 per month for 2 months, restriction and extra duty for 30 days, reduction to MSSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

910325:	Retention Warning:  Advised of deficiency (Two specifications of disobeying a general order and assault with a knife.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920419:	Applicant declared a deserter.

920429:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence 18Mar92 to 27Apr92 (39 days/surrendered).
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $574.00, confinement for 20 days, restriction for 20 days, reduced to MSSR.
	CA action 920512:  Sentence approved and ordered executed.
	
920429:	Applicant to confinement.

920515:	Applicant released from confinement and returned to full duty.

920602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920602:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement. Statement found in service record.

920605:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920617:	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 920703 under other than 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).

The applicant’s first issue states:  “(Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service records warrants separation under honorable conditions.”  The NDRB disagrees.  The applicant demonstrated a willful disregard for good order and discipline while on active duty.  He was found guilty at CO’s NJP on two occasions and once at a Summary Court Martial.  The Board found the applicant’s service appropriately characterized as Other Than Honorable.  Relief is denied.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”  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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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/A9221/A9223/A9225