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Docket No. ND03-00691

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

ex-ETC(SW), USN
Docket No. ND03-00691

Applicant’s Request

The application for discharge review was received on 20030313.  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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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)  My discharge was inequitable because it was based on an isolated incident in 11 years and 6 months of service with no other adverse action. -I was accused of misconduct.  The misconduct was never proven or even considered before a fact finding body.-I was never given a fair chance to answer questions or state my case.

2) Further, my outstanding service prior to this isolated incident seemed to never be considered prior to discharge.  The command issuing the discharge never consulted any reasonably objective legal body before issuing discharge.  I only accepted this discharge after my command mast chief shared with several persons at my command that he was going to get me out one way or another.”

Documentation

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

Letter from Applicant, dated February 28, 2003
Applicant’s DD Form 214
Applicant’s letter, dated August 14, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890830 - 900713	ELS
		   USNR (DEP)	900718 – 901119	COG
	Active:   USN 			901120 - 930520	HON
		   USN 		930521 - 990413	HON
		   USN			990414 - 020112	HON

Period of Service Under Review:

Date of Enlistment:  020113		Date of Discharge:  020531

Length of Service (years, months, days):

	Active:    00  04  19
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  12			AFQT:  82

Highest Rate:  ETC(SW)

Final Enlisted Performance Evaluation Averages: Enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM (2), SASM, SSDR, CGSOSR, KLM (K), BEA (2), GCM (3), AFEM, MUC (2), N&MCAM (2), ESWS

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:

020318:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the preliminary investigative report of 020228.

020318:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020515:	Applicant signed a conditional waiver requesting a discharge with a characterization of general (under honorable conditions) in lieu of electing an administrative discharge board.

020515:	Applicant notified of intended recommendation for discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by violation of the UCMJ, Article 92: failure to obey a lawful order on 020213, to wit: Naval Nuclear Power Training Unit Command Policy Number 5 dated 000823 and Article 93: Cruelty and maltreatment towards a subordinate on 020213.

020515:	Applicant advised of 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.

020515:	Commanding Officer recommended discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [On 13 February 2002, ETC(SW) M_ (Applicant) was assigned as a Preliminary Inquiry Officer (PIO) concerning allegations of underage drinking against two students (ET3 J_ and ET3 W_) assigned to Naval Nuclear Power Training Unit (NPTU), Ballston Spa.  While assigned as PIO, ETC(SW) M_ (Applicant) informed ET3 J_ that he would have to remove his clothing in order to conduct a search of his persons for any physical indications of drug abuse or use, as well as, any possible markings or tattoos.
(1) ET3 J_ consented to this illegal search and was directed by ETC(SW) M_ to remove his shirt, pants, and underwear, which was in direct violation of Naval Nuclear Power Train Unit Command Policy Number 5.
(2) On 07 March 2002 ETC(SW) M_ (Applicant) chose to invoke his right to refuse nonjudicial punishment, and was subsequently notified of his administrative separation process for discharge due to his inappropriate behavior and misconduct.
(3) I recommend ETC(SW) M_ (Applicant) be separated from the naval service with a discharge characterized as General (Under Honorable Conditions) based on ETC(SW) M_’s (Applicant’s) misconduct and contingency for separation in lieu of an administrative board.]

020517:	COMNAVREG NE Groton, CT directed the Applicant's discharge with a characterization of 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 20020532 with a 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 and 2:  The Applicant states his discharge was based on one isolated incident in “11 years and 6 months.”  To maintain proper order and discipline the military does not view isolated offenses as minor infractions even though they are a first time incident on an otherwise clear record.  The Applicant’s service record is marred by failure to obey a lawful order, cruelty and maltreatment of a subordinate.  The Applicant had very good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate his offenses.  Additionally, the Applicant waived his right to contest the characterization of service at an administrative board in order to receive a general (under honorable conditions) characterization of service.  Relief is therefore denied.   

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous eleven years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted

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 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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