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

Docket No. ND01-01103

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

 ex-RMSA, USN
Docket No. ND01-01103

Applicant’s Request

The application for discharge review, received 010821, requested that the characterization of service on the discharge be changed to honorable.  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 020328.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I believe my discharge was inequitable do to the fact the offense was based on one single isolated incident in 44 months of professional, magnanimous service with no other adverse or unscrupulous action.

2.  I have included documents that prove that my service to the United Stats Navy prior to this incident were above and beyond the call of duty.

3.  Due to the ostensible status of duress and the amount of professional advice given to commander R.S. H____(REF. Document #9) Recommending that I remain in country and not deploy, the discharge received was unequivocally arbitrary.

Documentation

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

Copy of Assignment of Naval Enlisted Classification Code (5326) Letter
Copy of Letter of Appreciation
Copy of Good Conduct Award
Copy of Evaluation Report & Counseling Record
Copy of Special Request Chit
Letters from Applicant to CMDR H_____ (2) (3pgs)
Request for Dependency or Hardship Discharge (3pgs)
Letter of Recommendation for Shore Duty Request from R____ T. B____, Ph.D.
Statement from Applicant (Request Chit)
Statement from Applicant (Stay of Punishment awarded at NJP)
Characterization Request from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	930806 - 931212	COG

Period of Service Under Review:

Date of Enlistment:  931213		Date of Discharge:  970903

Length of Service (years, months, days):

	Active:    03  08  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.80 (2)		OTA:  3.80 (4.0 Evals)
Performance:  3.00 (1)	Behavior:  4.00 (1)		OTA:  3.43 (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, EPSM, ERM, GCM 

Days of Unauthorized Absence:  None 

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970702:	Retention Warning:  Advised of deficiency (You have made statements to the fact that you are not willing to deploy with your unit and carry out all duties as prescribed in your orders), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970718:	NJP for violation of UCMJ, Article 86: Absence without leave 1800, 970710 until 0725, 970711 (13.5 hours/S), violation of UCMJ Article 87: Missing movement, violation of UCMJ Article 92: Failure to obey a lawful order or regulation.
	Award:  Forfeiture of $590.00 per month for 2 months, removed from NEC 5326, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

970826:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your 970718 nonjudicial punishment for missing movement.

970826:  	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 statements and the right to obtain copies of the documents used to support the basis for the separation.

970826:	Commanding officer recommended 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 970903 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).

Issue 1.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  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.

Issue 2.  The Board found that his performance prior to the missing movement doesn’t mitigate his commission of a serious offense.  It must be noted that most sailors serve honorably and well and therefore earn honorable discharges.   In fairness to those sailors, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due.  The discharge was proper and equitable.  Relief denied.

Issue 3.  The Board found no credible documentation to support the applicant’s claim that his discharge characterization was arbitrary or unjust.  Based on the applicant’s misconduct the discharge procedures were properly executed and the characterization assigned was equitable.  The applicant’s personal problems, although they were unfortunate, do not mitigate his misconduct.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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/A9235/A9217/A9411/A9309/A9221