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

 ex-SR, USN
Docket No. ND05-00734

Applicant’s Request

The application for discharge review was received on 20050330.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized and the RE code changed.  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 20050713.  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. Discharged after October 1, 1982 in an entry level status with other than honorable conditions and less than 180 days of active service.”

“2.  Have demonstrated a desire to succeed through academic achievement following separation and would like to contribute for my country.”

Documentation

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

Personal Letter from Applicant dated March 24, 2005
Applicant’s DD Form 214
Degree from California State University dated May 25, 2004 
Aviation Maintenance Technician Diploma from Spartan School of Aeronautics dated September 25, 1996
Powerplant Curriculum Diploma from Spartan School of Aeronautics dated February 24, 1996
Airframe Curriculum Diploma from Spartan School of Aeronautics dated September 25, 1996
Driving Record from California Department of Motor Vehicles dated November 8, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900721 - 910624	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910625		Date of Discharge:  910927

Length of Service (years, months, days):

	Active:    00  02  09 		(Excludes lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  92

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks made available for review

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:

910805:	Waiver of clemency rights.

910805:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 90.
	Specification: In that [Applicant] at Recruit Training Command, Orlando, Florida, on active duty, having received a lawful command from Lt G. A. S_, U.S. Navy, his superior commissioned officer then known by the said [Applicant] to be his superior commissioned officer, to return to training or words to that effect did willfully disobey the same.
	
Addendum to record of trail excerpt.  “The accused testified that:  …Lt S_ gave him an order to return to training.  The accused rejected the order.  The accused knew it was wrong and that by disobeying the order he was subjecting himself to some serious consequences.  That he knew Lt S_ was an officer but that he just wants out of the Navy.  He lost his qualification for the nuclear program.”

	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $464.00 pay per month for 1 month, confinement for 30 days, reduced to E-1.
	CA action 910807: Approved findings and sentence.

910905:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910905:	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.

910910:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

910920:	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 19910927 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization.  An under other than honorable conditions discharge 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 a summary court-martial conviction for a violation of Article 90 of the UCMJ.  Violations of Article 90 are considered serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Therefore, the Board found his under other than honorable conditions characterization appropriate.  Relief is not warranted.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 90, failure to obey an order from a superior commissioned officer, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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