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Docket No. ND03-01011

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

 ex-YNSN, USN
Docket No. ND03-01011

Applicant’s Request

The application for discharge review was received on 20030516.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Board Members,

My name is D_ E_ T_ (Applicant), the reason I am submitting this letter is I respectfully request to have my discharge from the Naval Service of Under Other Than Honorable Conditions upgraded to an Honorable Discharge.

I have been in Federal Law Enforcement, as a Police Officer (GS-0083) for approximately 2 years and, a Security Guard (GS-0085) for approximately 2 years in the Great Lakes Police Department, a component of the Department of Defense.  At this agency, my discharge was not a problem as long as I had not received a Bad Conduct Discharge or a Dishonorable Discharge or, had any previous felony convictions or a conviction of Domestic Violence, I was fine and, could work.

I left the Great Lakes Police Department for personal reasons on March 22, 2002 (my father who was, and still is suffering with dementia, was diagnosed with throat cancer).  I felt that my family needed my help.  And, felt that placing my career on temporary hold was the thing to do.  The cancer has now remised and, my dad was given a “clean bill of health”.  I now look forward to pursuing my career as a Federal Law Enforcement Officer in the Washington, DC Metropolitan Area.

I have submitted an application package(s) to the United States Pentagon Police Department and, have completed a hiring package, for the position as a Federal Police Officer.  I have also submitted an application package(s) to the United States Capital Police Department, for the position of Police Officer, I have completed and, submitted an application package(s) to the Department of the Treasury United States Secret Service, for the position of Criminal Investigator, and the United States Secret Service Uniformed Division, for the position of Uniformed Officer, which at this time, is in the process of being reviewed for consideration.

During a background investigation conducted by the United States Pentagon Police Department, it was discovered that I have an Under Other Than Honorable conditional discharge.  Although, I possess all of the qualities, qualifications, and the experience for this position, all of the agencies I have applied for in the Washington DC Metropolitan Area require an individual with an Honorable Discharge.

I am aware that being a Police Officer is considered to be a dangerous occupation.  However, I really enjoy dealing with the public and, with my personality, I feel that I can make a difference in some of the individual(s) I came in contact with be it good, bad or, indifferent.  The other reason I chose the Washington, DC Metropolitan Area is I feel as a Law Enforcement Officer, I would get the training to be an outstanding Law Enforcement Officer.

I have a question concerning my Certificate of Release from Active Duty (Enclosure (1)) and, why it states only “Discharge”.  I went before an Administrative Board, and upon completion, I was given an Administrative Discharge Under Other Than Honorable Conditions and the discharge code was RE-4.  I respectfully request a review into this matter.  It also states that I had committed a serious offense(s).  I have never committed a serious offense(s), outside of being late to work.

Please review the information I have submitted in hopes of granting me with an Honorable Discharge, from the United States Naval Service.  I have devoted countless hours, time, and persistence for the position I feel I deserve with the Federal Government.

Respectfully submitted,

D_ E_ T_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
One page from Applicant’s service record
Character reference, dated July 1, 2003
Character reference, dated July 1, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	821124 - 830906	COG
	Active:   USNR		830907 - 900905	HON

Period of Service Under Review:

Date of Enlistment:  900906		Date of Discharge:  920713

Length of Service (years, months, days):

	Active:    01  10  08
	Inactive:  None

Age at Entry:  26			Years Contracted:  2

Education Level:  11			AFQT:  20

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NER, NDSM, MUC, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901206:	Civil Conviction:  Duval County Courthouse, Jacksonville, FL for violation of Battery (spouse).
	Pled:  No contest – withheld adjudication.
Sentence: Court cost, probation for 7 months, Step 1 program.  Court cost suspended.

910214:	NJP for violation of UCMJ, Article 92: Failed to obey lawful order on 910119, to wit: to collect his personal clothing for residence of D_ V_ T_.
	Award:  Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to YNSN, oral reprimand.  No indication of appeal in the record.

910905:	NJP for violation of UCMJ, Article 86: Unauthorized absence 1130-1445, 910805, violation of UCMJ, Article 92: Disobeyed a lawful order, violation of UCMJ, Article 107: Intent to deceive.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to YNSN.  Forfeiture suspended.  No indication of appeal in the record.

920604:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence 0830-1410, 920507, (2) Unauthorized absence 0900-1135, 920512, (3) Unauthorized absence 0800-0825, 920520, (4) Unauthorized absence 0830-0843, 920521, violation of UCMJ, Article 92: Failure to obey order.
	Award: Extra duty for 45 days, reduction to YNSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

920611:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

920611:	Applicant advised of 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.

920618:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

920626:	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 19920713 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).

Issue 1.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

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.  By regulations, a serious offense is defined as an offense in which a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense.  The Applicant’s service was marred by award of three nonjudicial punishments (NJP) for failure to obey lawful order on several occasions, unauthorized absence on numerous occasions, and a civil conviction.  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 would be 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.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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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