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Docket No. ND03-00911

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

 ex-HR, USNR
Docket No. ND03-00911

Applicant’s Request

The application for discharge review was received on 20030428.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Fire Rescue Volunteer Service Letters dated June 18, 1998 (2) 
Certificate of Achievement (Nassau County Fire/Rescue Safety and Scene Size Up 4 Hour Lecture)
Reference Letters dated January 16, 2003 (2)
Reference Letters dated January 15, 2003 (2)
Reference Letters from Recruiter dated February 18, 2003 (2)
Letters from Applicant dated February 18, 2002 (2)
Copies of DD Form 214 (2)
Copy of Certificate of Appreciation dated February 26, 2000.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  910614		Date of Discharge:  950118

Length of Service (years, months, days):

	Active:    03  00  30
	Inactive:  00  06  05

Age at Entry:  18			Years Contracted:  8 

Education Level:  12			AFQT:  61

Highest Rate:  HA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (2)	Behavior:  2.30 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  3

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:

911209:	Commenced 4 years of Active Duty.

921105:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0900, 920925 until 0640, 920929 (3 days/S).
	Award:  Correctional Custody Unit for 30 days.  No indication of appeal in the record.

941121:	NJP for violation of UCMJ, Article 86: On or about 0645, 940405, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Commanding Officer’s Personnel Inspection; violation of UCMJ Article 92(4 specifications), Specification 1: On or about 1400, 940421, was derelict in the performance of his duties in that he negligently failed to stand a proper watch, which it was his duty to do, Specification 2: On or about 0245, 940811, was derelict in the performance of his duties in that he negligently failed to stand a proper watch, which it was his duty to do, Specification 3: Having knowledge of a lawful order issued by Commander, Naval Base, Jacksonville, FL, to wit: CNAAJINST 3593.1 of August 1993, and order which it was his duty to obey, did at BEQ H-2034, Naval Hospital, Jacksonville, FL, on or about 1400, 940523, fail to obey the same by wrongfully being in possession of one pair of brass knuckles, Specification 4: Having knowledge of a lawful order issued by Commanding Officer, Naval Hospital, Jacksonville, FL, to wit: NAVHOSPJAXINST 11103.1B of April 1993, and order which it was his duty to obey, did at (BEQ H-2004), Naval Hospital, Jacksonville, FL, on or about 1400, 940523, fail to obey the same by wrongfully being in possession of 144 bottle rockets, 396 firecrackers, 1 smoke bomb, and 2 roman candles.
	Award:  Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

941128:	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 findings at Commanding Officer’s NJP that you violated UCMJ Article 92 (2 specifications) disobeying a lawful order, which a punitive discharge would be authorized by the Manual for Courts-Martial.

941130:	Applicant advised of his rights and having elected not to consult 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.

941209:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

941230:	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 19950118 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 did not introduce any decisional issues for the Board’s consideration.  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 separate occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.  

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.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  Relief denied.

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 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.
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