Author: CAP
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Docket No. ND03-00580

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

ex-ENS, USNR
Docket No. ND03-00580

Applicant’s RequestThe application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.________________________________________________________________________DecisionA documentary discharge review was conducted in Washington, D.C. on 20040205.  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: SECNAVINST 1920,6B and DCNP message 011253ZJUN01.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  At NJP all of my charges were considered with respect to the UA charges.  I was treated as though I intentionally wanted to be late.  This was not the case.  I never wanted to be late, not even once.  I just had a hard problem getting up in the morning.  I would set my alarm but would sleep right through it.”

“2.  With respect to fraternization I made some mistakes. I allowed my relationships with the enlisted students to go to far.  At the time I did not believe this was the case and the first time that this was made known to me was at my NJP hearing.  I was never given the chance to change this.”

“3.  I feel that my dislike for the nuclear power program and the fact that I was looking for a way out of the program affected my NJP hearing.  I was told that the only way out of the program was out of the navy.  I did not want to get out of the navy, only out of the nuclear program.  With this known I feel that it biased  the CO in his decision to recommend me for admin sep.”

“4.  After being recommended for admin sep, I had to pay back the nuc accession bonus of $8,000.  I was glad to pay it back and did fully.  However during the repayment period the navy was garnishing $2000/mo which was higher than my base pay and as a result was taking part of my BAH.  I attempted to procure base housing at that time and was denied.  As a result I was forced to live in a tent during the winter.”

Documentation

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

Applicant’s Personal Statement regarding Nonjudicial Punishment (2 pages)
Copy of Applicant’s NAVPERS 1626/7 outlining Charge I – Violation of the UCMJ, Article 86 (4 pages)
Personal statement from B_ S_, ENS, USN, dtd Nov 3, 2000 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Commission:  000524	Date of Discharge:  010608

Length of Service (years, months, days):

	Active:    01  00  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  8

Education Level:  16

Highest Grade:  ENS

Officer Performance Evaluations not contained in the service record

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, Navy Sharpshooter Pistol Shot Ribbon, Navy Marksman Rifle Ribbon

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1920.6B and DCNP message 011253ZJUN01.

Chronological Listing of Significant Service Events:

001120:	NJP for violation of UCMJ:
Charge I:  violation of Article 86 (9 Specs):  Without authority, absent himself from his appointed place of duty on 22AUG00, 4OCT00, 27OCT00, 30OCT00, 31OCT00,1NOV00, 15NOV00, 16NOV00, and 17NOV00.
Charge II:  violation of Article 92 (6 Specs):  Failed to obey lawful order on 18SEP00, 29OCT00, 20OCT00 (4 Specs).
Awarded admonition in writing.  Not appealed.

001122:	Punitive letter of admonition issued to Applicant.

010308:	Applicant received CHANVPERS letter of 28FEB01 (letter not contained in the service record) and Applicant acknowledged rights and elected to tender his resignation request and did not desire to dispute the validity of his indebtedness.

010308:	Applicant requested resignation and acknowledged understanding of his characterization of service as General (Under Honorable Conditions).

010330:	CNP forwarded Applicant’s request for resignation in lieu of further administrative separation processing.  CNP recommended approval of Applicant’s request and recommended characterization of General (Under Honorable Conditions) with a separation code of BKQ (commission of a serious military offense).

010515:	Assistant Secretary of the Navy (M&RA) approved the resignation and subsequent discharge due to commission of a serious military offense.

010601:	DCNP issued separation orders.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010608 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).

Issues 1 and 2.  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 award of nonjudicial punishment (NJP) on one occasion.  The nonjudicial punishment included six specifications of violations of lawful orders which are considered serious offenses.  The Applicant’s alleged ignorance of these orders do not mitigate his misconduct.  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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade to honorable is inappropriate.  Relief denied.

Issue 3.  The Applicant believes that his Commanding Officer did not treat him fairly due to his desire to get out of the nuclear power program.  The Board found that this assertion does not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 4.  The Board found that the Applicant’s living conditions and financial situation during the period of service after his nonjudicial punishment does not mitigate his misconduct.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity is evident during the Applicant’s service.  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.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.  

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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