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Docket No. ND02-00852

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

 ex-ICFR, USN
Docket No. ND02-00852

Applicant’s Request

The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to CONVENIENCE OF THE GOVT.  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 030311.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  Clemency is warranted because it is injustice for me to continue to suffer the adverse consequences of a bad discharge.  Whether it's for an employment application or a college enrollment form, needing to provide an explanation as far as why I was separated with a general discharge and due to what sort of misconduct is an embarrassment.

2.  My overall conduct and efficiency ratings were good.  Regardless of working out of rate while stationed at NAS Keflavik, my performance evaluations support my ability to positively adapt to the various duties and responsibilities of the departments in which I were assigned to (document 1, enclosure 11, pages 1 and 2; document 3, pages 1, 2, 3).

3.  My record of NJP indicates only one isolated offense.  It is unfair and unjust to have characterized my entire naval career as one of misconduct based on an isolated incident in which my CO references as an unintentional mistake resulting from a training exercise (document 1, pg. 2, ref. j: comments and recommendations of the CO sentences 2 and 3).

Documentation

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

Statement from Applicant, undated
Twenty-five pages from Applicant's service record
Applicant's DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930413 - 940109	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940110		Date of Discharge:  960311

Length of Service (years, months, days):

	Active:    02  02  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  63/72

Highest Rate:  ICFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.80 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950403:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 950422, violation of UCMJ Article 134: Calling in a bomb hoax on 950422.
	Award: Forfeiture of $200 per month for 2 months, extra duty for 15 days, reduction to ICFR.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

950403:	Retention Warning:  Advised of deficiency (Failure to be at an assigned place of duty.  Article 134 - communicating a bomb hoax.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950606:	Applicant advised of second failure to meet the physical readiness standards per OPNAVINST 6110.1d and NAVADMIN 148/94 (251927Z AUG 94) due to failing the height/weight and body composition of 31 %.  Applicant enrolled in command's level I physical readiness program and am required to participate as directed until I meet the height/weight or body composition and obtain a passing score on an official physical readiness test.

951106:	Applicant notified of third failure of Official PRT height/weight, circumference body fat measurement and/or PRT as outlined in OPNAVINST 6110.1D and NAVADMIN 251927Z Aug 1994.  Applicant to continue to participate in the Level I remedial physical conditioning program and the nutritional class.

951114:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your nonjudicial punishment on 7 April 1995 and weight control failure as evidenced by your failure to pass the body fat requirements on 6 November 1995, 6 June 1995, 31 January 1995 and your lack potential for continued naval service.

951130:	Applicant advised of her rights and having consulted 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.

951214:	Commanding Officer recommended discharge with a discharge characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and weight control failure.  Commanding Officer’s comments (verbatim): [Upon review of enclosures (1) through (12), I have determined that Fireman Apprentice D_ (Applicant) has been offered ample opportunity to correct her deficiency with respect to the Navy's PRT standards but has not made a sufficient effort to do so, and thus I have determined that Fireman Apprentice D_ (Applicant) lacks potential for continued Naval service.  I recognized that her disciplinary record includes a Mast conviction for having made a bomb threat, which would ordinarily warrant a discharge under Other Than Honorable conditions.  However, as the threat was apparently a botched, misguided attempt to set up a training exercise, carried out at a time she was responsible for training a section of her department on bomb threat procedures, I do not believe that the incident warrants characterizing her service as being under Other Than Honorable conditions.  I recommend that Fireman Apprentice D_ (Applicant) be separated from the Naval service with a General discharge.]

960208:	BUPERS directed the Applicant's 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 960311 with a discharge characterization of 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Relief denied.  

Issue 2:  The Applicant states her character is demonstrated by her outstanding and documented, evaluations she received throughout her enlistment in the Navy.  The Board agrees the Applicant had good evaluations throughout her tenure, but her performance prior to the bomb hoax does not mitigate her offense.  In the Applicant’s case, the Board could not discern any impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a departure from that expected of a sailor.  The record is void of any evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on one occasion, to include the appropriate retention and discharge warning.  The discharge was proper and equitable.  Relief denied.

Issue 3:  The Applicant states her discharge was based on only one isolated incident in which her Commanding Officer refers to as an unintentional mistake resulting from a training exercise.  The offense alone ordinarily warrants a discharge under other than honorable conditions.   However, since the Commanding Officer’s comments mitigated the offense, the Applicant was discharged with a characterization of general (under honorable conditions).  Relief denied

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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 "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/A9201/A9235