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

 ex-HM3, USN
Docket No. ND03-00443

Applicant’s Request

The application for discharge review was received on 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: NAVMILPERSMAN, Article 1910-104.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge is unwarranted because it was based on one incident with 72 months of service with no adverse action, NJP or court-martials and still received a General Discharage/RE-4.  I respectfully request for an upgrade to Honorable/RE-1.  On February 10, 2002 my obligated service ended with 72 months of active duty service with no adverse actions, NJP or court-martials.  I fulfilled my contract of enlistment with the United States Navy and still received a General discharge and improper evaluation remarks.  During my enlistment I was charged with fraud and conspiracy to steal from the government.  I testified and made statements against four other conspirators and made 100% retribution of the money I collected.  When my active duty service of 72 months ended, I was Generally Discharged without ever being sentenced at an NJP, court-martial hearing or having any other adverse actions taken against me.”

2.  “My evaluation was given adverse remarks but that was unwarranted due to BUPERSINST 1610.10.  BUPERSINST 1610.10 states the Navy Performance Evaluation and Counseling System Overview for Commanding Officers, Delegated Reporting Seniors and Raters, En closure (1) section 13 (Document 1) that reports may not mention non-punitive cesure or investigatory, judicial or other proceedings, which may have not been concluded or have exonerated the member.  Enclosure (2), Annex N-10 section g. (document 2) states if the report mentions a conviction or NJP give the date or award of punishment and concluding dates of proceedings.  Enclosure (2), Annex N-13 section b. (document 3) states do not refer to any court-martial unless there has been a conviction or award of punishment.  I never received an NJP or court-martials proceedings, so I was exonerated, never convicted and given no punishment.  MILPERSMAN 1910-104: Separation by Reason of Expiration of Active Obligated Service (EAOS) (document 4) states Honorable unless General is warranted by the basis of the Enlisted Performance Evaluation System, BUPERSINST 1610.10 REFERS.  Member is eligible for a characterization of service as General (Under Honorable Conditions) if during a Sailor’s current enlistment the member’s final evaluation average is 2.49 or below.  My final evaluation average is 3.58 for my enlistment (evaluations:  documents 5-9).  I completed my obligated service of five years with the proper marks for an Honorable discharge.  I would be please and honored if the board grants me an upgrade in discharge so that I may continue on active duty with the United States Navy.  Please respond in writing to the address included with this application , I am currently at Naval Air Station, Sigonella, Italy where my wife is stationed, the address included is a permanent one”.

Documentation

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

Copy of DD Form 214
Document 1:  BUPERSINST 1610.10 Navy Performance Evaluation and Counseling System Overview for Commanding Officers, Delegated Reporting Senior and Raters, Enclosure (1), Section 13.  What about misconduct reporting? Page 4
Document 2:  BUPERSINT 1610.10 Navy Performance Evaluation and Counseling System Overview for Commanding Officers, Delegated Reporting Senior and Raters, enclosure (2) ANNEX N, Section N-10, part g. Concluding Date of Civil Prosecution, Court-Martial, or NJP Proceedings.  Page N-3.
Document 3:  BUPERSINST 1610.10 Navy Performance Evaluation and Counseling System Overview for Commanding Officers, Delegated Reporting Senior and Raters, Enclosure (2) ANNEX N, Section N-13, part a. Commenting on Misconduct Generally and part b. Commenting on Judicial or NJP Proceedings.  Page N-5.
Document 4:  MILPERSMAN 1910-104 Separation by Reason of Expiration of Active Obligated Service (EAOS).
Document 5:  NAVPERS 1616/26 Evaluation Report and Counseling Record (E-1-E-6) for 97APR22 – 98JUL15.
Document 6:  NAVPERS 1616/26 Evaluation Report and Counseling Record (E-1-E-6) for 98JUL16 – 99JUL15.
Document 7:  NAVPERS 1616/26 Evaluation Report and Counseling Record (E-1-E-6) for 99JUL16 – 00JUL06.
Document 8:  NAVPERS 1616/26 Evaluation Report and Counseling Record (E-1-E-6) for 99JUL07 – 01JUL15.
Document 9:  NAVPERS 1616/26 Evaluation Report and Counseling Record (E-1-E-6) for 01JUN16 – 02FEEB10.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960531 - 970210	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970211		Date of Discharge:  020210

Length of Service (years, months, days):

	Active:    05  00  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  13			AFQT:  55

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (5)	Behavior:  3.0 (5)		OTA:  3.58 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NMCAM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority:  NAVMILPERSMAN, Article 1910-104.

Chronological Listing of Significant Service Events:

010211:	Extended enlistment for 12 months.

020210:	Applicant discharged with a General (Under Honorable Conditions) by reason of completion of required active service.

020212:	Applicant signed Evaluation Report & Counseling Record, acknowledging adverse mark in “Military Bearing/Character”.  Evaluation states “Member admitted to conspiring with another service member to steal over $8,000 in illegal Basic Allowance and Housing payments.  Applicant marked block indicating he did not intend to submit a statement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020210 with a general (under honorable conditions) by reason of completion of required active service (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 contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  The Applicant states his discharge was based on one isolated incident with no other infractions.  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.  There is credible evidence in the record that the Applicant committed fraud and conspiracy to defraud the government.  This conduct was properly documented in the Applicant’s Enlisted Performance Evaluation.  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 honorable is inappropriate.  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.  Relief denied.

Issue 2.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 34, effective
15 October 2001 until 21 Aug 02, Article 1910-104 (previously 3620150), SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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