Author: CAP
Last saved by: Department of the Navy
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Docket No. ND02-01197

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

 ex-MSSA, USN
Docket No. ND02-01197

Applicant’s Request

The application for discharge review, received 020814, 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 030515.  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, as submitted

1.  I am respectfully requesting your office to grant my appeal for the amendment of my discharge from the Navy.  In 1997, I was discharged from the Navy with General (Under Honorable Conditions), due to misconduct!  I blamed myself for such blunder I made, and I am making an appeal that the "Board" will grant my (Honorable Discharge) so that I could go back to active duty, and the active reserve!  Since Sept. 11, 2001, happened to our country.  I really wanted to go back to active duty in the Navy, because I wanted to defend it at all cost and if I have to offer my life, "I will", for the sake of my country and the American citizens like me!

Sir/Mama, please give me another chance to serve my country through going back to active service soon!  I know that my (RE-4) code now in my DD-214, will not let me go back to the naval service with only (RE-1) code!  Again, I am very sorry and longing you will grant my request and another chance to serve my country through (Naval Service)!  God bless us!  Thank you so much!

Very Respectfully Yours,

Documentation

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

Two pages from Applicant's service
Applicant's DD Form 214
Honorable Discharge certificate from Army National Guard, dated January 20, 2000
DD Form 149, dated May 28, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950329-950509	COG
	Active:   ANG 		Unknown - 000120	HON

Period of Service Under Review:

Date of Enlistment:  950510		Date of Discharge:  971219

Length of Service (years, months, days):

	Active:    02  07  10
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  28

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:

950510	Applicant reported to Recruit Training Command, Great Lakes, IL.

950809	Applicant reported to SSC San Diego for temporary duty.

951109	Applicant reported to TPU NAVSTA San Diego, CA.

951117	Applicant reported to USS CHANDLER DDG-996 for duty, homeport San Diego, CA.

971001	Applicant to unauthorized absence.  Information available indicates MSSN R_ L. R_ (Applicant), USN, told others onboard he was going to desert or words to that effect.  MSSN R_ L. R_ (Applicant) declared a deserter as of 0700, 1 October 1997.

971001	Applicant missed ship’s movement.

971029	Applicant surrendered to military authorities, Port Hueneme, CA.

971106:	Fleet Mental Health Unit, Branch Medical Clinic, Naval Station San Diego, CA.  Psychiatric Evaluation: Primary diagnosis:  Personality disorder NOS, (dependent and borderline features).  “…this member (Applicant) threatens to commit suicide if retained on active duty…He is deemed fit for return to duty for immediate processing for administrative separation…It is also recommended that he not have access to any weapon, not operate government vehicles, work with classified materials, nor be involved with field work…”

971124	Applicant transferred to TPU NAVSTA San Diego, CA.

971212:	NJP for violation of UCMJ, Article 86: Absent from unit 971010 until 971029 (28 days/surrendered), violation of UCMJ, Article 87: Missing movement on 971001.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSA.  No indication of appeal in the record.

971215:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.

971215:	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.

971231:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [MSSA R_ (Applicant) appeared before nonjudicial punishment proceedings on 97DEC12 as detailed in paragraph 4 above; offenses which normally would warrant an Other Than Honorable Discharge.  However, I believe that his medical diagnosis of 97NOV06 for severe personality disorder is an overriding mitigating circumstance for his behavior.  Therefore I authorized separation of MSSA R_ (Applicant) with a General Discharge by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 971219 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 NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces, as requested by the Applicant.  Neither a less than honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  The “RE-4” code means the former service member is not eligible for reenlistment without prior approval of the Chief of Naval Personnel.  Relief denied.

The Applicant’s summary of service is marred by award of non-judicial punishment (NJP).  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable.  An upgrade to honorable would be inappropriate.  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.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  Relief denied.

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 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 "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/A9453/A9241/A9445/A9217/A9223/A9221