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

ex-AR, USNR
Docket No. ND05-00023

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050323.  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.  “I am proud of my naval service.  I am a married man for 10 years I have a son of 2. I feel that my discharge was hastily accepted by myself and feel that I at least deserve a general.
	1. I am a veteran of the Gulf War.
	2. I have medals
	3. I wish to clean up my record
	4. I love my country”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the available records reflect that this former member earned the NDSM and SSDR.  He was awarded NJP on 900522 for VUCMJ, Article 86 and convicted by SCM for VUCMJ, Article 86 (5 specs).  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record. He has submitted 10 pages of additional documentation attesting to his good post service character, career pursuits and family involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Letter from Chief of Naval Personnel, dated March 9, 1992 (2)
Applicant’s DD Form 214
Letter from Chief of Naval Personnel, dated March 9, 1992
Certificate of completion, dated May 8, 1992
Receipt from Zona Seca
Notice of completion
Business card
Letter to Applicant, dated January 9, 2004
Letter from Applicant, dated November 17, 2004
Picture of Applicant
Character reference, dated October 16, 2004
Memorandum, dated February 9, 1991
Corporate charter paper, dated December 20, 2001
Notice of acceptance as an S-Corporation, dated April 26, 2004
Real Estate Salesperson Conditional License, dated September 30, 2004
Ten pictures

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 Enlistment:  891213		Date of Discharge:  910411

Length of Service (years, months, days):

	Active:    01  01  11	(Does not exclude lost time)
	Inactive:  00  02  15

Age at Entry:  21			Years Contracted:  8

Education Level:  11 GED		AFQT:  50

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)		Behavior:  2.00 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  21

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:

900301:	Applicant to active duty for 36 months under the Active Mariner Program.

900522:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 1900-2010, 900516, violation of UCMJ, Article 92: Fail to obey a lawful order issued by the Commanding Officer.
	Award: Forfeiture of $300 per month for 1 month.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 910321.]

900522:	Retention Warning:  Advised of deficiency (Failure to obey a lawful written order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910110:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (6 specs):
	Specification 1: Unauthorized absence from 901002 to 901018.
	Specification 2: Unauthorized absence from 901101-901102.
	Specification 3: Unauthorized absence from 901109-901113.
	Specification 4: Fail to go at the time prescribed to appointed place of duty on 901215.
	Specification 5: Fail to go at the time prescribed to appointed place of duty on 901216.
	Specification 6: Fail to go at the time prescribed to appointed place of duty on 901217.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $482.00, confinement for 30 days.  [Extracted from Commanding Officer’s letter dated 910321.]

910211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910211:	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.

910321:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910405:	CNMPC 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 19910411 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.  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 one occasion for unauthorized absence and disobedience of orders.  The Applicant also received a summary court-martial for six specifications of unauthorized absence.  The Applicant’s failure to obey orders is considered a serious offense under the UCMJ.  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 or under honorable (general) characterization of service.  The positive aspects of the Applicant’s service do not mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  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.  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.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023