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Docket No. ND02-01254

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

 ex-SA, USN
Docket No. ND02-01254

Applicant’s Request

The application for discharge review, received 020906, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing in any area of North Carolina.  The Board advised the Applicant that his case would first receive a document review and that all personal appearance hearings are held in Washington, D.C.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I currently do not have any issues of my discharge besides the fact of the integrity the military has given me.  The experience with the good and bad has been exceptionally rewarding.  Based on the on the type of human being and man I am, I owe the military for who (Applicant) has now become, an excellent humanitarian and American with pride!

Documentation

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

Request for a certificate of eligibility for VA home loan benefits, dated August 27, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930518 - 931116	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931117		Date of Discharge:  951004

Length of Service (years, months, days):

	Active:    01  10  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.67 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NEA, SASM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950330:	NJP for violation of UCMJ, Article 92:  Disobey lawful general regulation, to wit: Navy Regulation 1159, by wrongfully possessing a weapon (Samurai Sword) within an automobile onboard Naval Station, San Diego, CA on 960313.
	Violation of UCMJ, Article 134: Wrongfully possess an unauthorized automobile base decal red activity strip and month sticker.
	Award: Forfeiture of $479 per month for 1 month, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

950330:	Retention Warning: Advised of deficiency (Disobey lawful general regulation, to wit: Navy Regulation 1159 by wrongfully possessing a weapon (Samurai Sword) within an automobile onboard Naval Station, San Diego, CA on 960313 and wrongfully possess an unauthorized automobile base decal red activity strip and month sticker), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950808:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order by bringing a knife with a blade longer than 3 inches on board FCTCLANT Dam Neck, VA.
Violation of UCMJ, Article 121 (2 specs): (1) Steal one gold necklace, a value of $620.00, one gold signet ring, value of $100.00, property of SA, (2) Steal one Nintendo Gameboy cartridge, value of $100.00, steal one AIWA compact disk player, one set of AIWA stereo headphones and one AIWA AC adapter value of $150.00, property of SA.
	Award: Forfeiture of $478 per month for 2 months, restriction for 45 days, reduction to SA.  No indication of appeal in the record.

950809:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950814:	Applicant advised of his 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.

950822:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950925:	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 951004 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 introduced no decisional issues for consideration by the Board.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and such an issue does not serve to provide a foundation upon which the Board can grant relief.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  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:  A6750/A9453/A9217/A9223/A9221