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Docket No. ND03-00421

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

 ex-FA, USN
Docket No. ND03-00421

Applicant’s Request

The application for discharge review was received 20030114.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant lists the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

1.  “Request upgrade of Military Discharge.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“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:

Letter from the Applicant, dated November 20, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991217 - 991229	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991230		Date of Discharge:  020418

Length of Service (years, months, days):

	Active:    02  03  19
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

010918:	NJP for violation of UCMJ, Article 86: Fail to go at time prescribed to appointed place of duty on 0730, 010823, to wit: Fire Pump AC & R Rover watch, violation of UCMJ, Article 92 (2 specs): (1) Dereliction in the performance of duty on 010823, to wit: failed to stay awake while standing watch, (2) Dereliction in the performance of duty on 010908, to wit: willfully failed to check in with the ESOW in Damage Control Central and failed to stay awake while standing watch.
	Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 30 days, reduction to FA.  Reduction suspended for 6 months.  No indication of appeal in the record.

010918:	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. 
	
011012:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (5 specs):
	Specification 1: Unauthorized absence from restricted muster, at 2130, 010921.
	Specification 2: Unauthorized absence from restricted muster, at 0804, 010930.
	Specification 3: Unauthorized absence from restricted muster, at 1300, 010930.
	Specification 4: Unauthorized absence from restricted muster, at 1500, 010930.
	Specification 5: Unauthorized absence from restricted muster, at 0700, 011001.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $250.00, confinement for 15 days.
	CA action 011012:  Sentence approved and ordered executed.

020110:	NJP for violation of UCMJ, Article 91: Willful disobedience of petty officer on 011219, violation of UCMJ, Article 128: Assault consummated by a battery on 011219, to wit: unlawfully grab the neck of SH3 R_ with his hands.
	Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to FA.  Appealed 020215.  Appealed denied 020222.

020110:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

020110:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020215:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (20 specs):
	Specifications 1-20: Failed to go at time prescribed to appointed place of duty, on twenty occasions, between 020113 and 020209, to wit: restricted muster.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $500.00, confinement for 30 days.
	CA action 020215: Sentence approved and ordered executed.

020227:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the Applicant had committed a pattern of misconduct and commission of a serious offense, and by a unanimous vote, found that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge with a characterization of service as general (under honorable conditions).  The Senior Member noted in the findings of the Board that they did not conclude that the Applicant committed the assault as alleged in the 020110 nonjudicial punishment.

020326:	Commanding Officer directed 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 20020418 with a 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.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on two occasions and conviction by Summary Court-Martial on two occasions.  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 to an honorable discharge is inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits, such as schooling.  Accordingly, this issue does not serve to provide a foundation upon which the Board can grant relief. 

Issue 2.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  As this time, the Applicant has not provide any documentation for the Board to consider.  Therefore, no relief is warranted.

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 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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.
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