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Docket No. ND06-00114

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

FOR OFFICIAL USE ONLY

 ex-SA, USNR
Docket No. ND06-00114

Applicant’s Request

The application for discharge review was received on 20051026.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060810.  After a thorough review of the available 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 by reason of misconduct due to commission of a serious offense.

  
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter: 

“I’m requesting a change in my reenlistment code so that I may rejoin the U. S. Armed Forces.”

“To Whom It May Concern:

I’m writing in reference to my hopes of returning to active duty.  I originally joined the armed forces in Nov. of 1994 until my discharge on June 13, 1996.  My discharge unfortunately was other than honorable sub class of misconduct.  Due to my age and inexperience with military life.  My discharge based on the amount of debt that I had acquired during my enlistment since such time I’ve greatly regretted my decision to ask for a discharge.  Now I’ve grown older, gotten married and have children my priorities have taken a complete turn.  My family is the one driving force that will cause me to make mature decisions.

My last command was the U.S.S. America CV-66 [sic], which decommissioned on April of 1996.  Almost as soon as I returned home I began to think of what a mistake I made.  No longer did I have that pride in myself that came along with being a service member.  I would very much like to restore that pride and extend it throughout my family.  Currently I’m living under housing and that is not the dream I envisioned for my self or my family.  I have kept myself in the best physical condition possible, so therefore if allowed to return to service I will have no trouble-keeping pace and or surpassing the younger recruits.  Even though I have made serious mistakes in my past, I respectfully request one final chance to make things right in order to make myself, my family and my country proud.  I hope that this letter along with my reference letters will be enough to allow me finally live my dream.  

Respectfully yours,

R_ H_ (Applicant)  (SS#)”

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from L_ D_, dtd October 10, 2005
Character Reference ltr from D_ R_, dtd October 6, 2005
Character Reference ltr from Z_ R_, dtd October 10, 2005
Character Reference ltr from Pastor E_ T_, dtd September 20, 2005
Ltr from Applicant, dtd December 2, 2005  (2 pages)
Registry of Connecticut Department of Public Health, dtd June 07, 2002
Birth Certificate (K_ R_ H_)
License and Certificate of Marriage, dtd February 15, 2002
Certificate of Achievement, dtd November 15, 1999
Certificate of Completion of 4 hours of instruction in Aids and Hepatitis, dtd February 2, 1998
Certificate of Completion, dtd March 21, 1997
Certificate of Certification in Phlebotomy Technician, undated
Certificate of Completion, dtd April 4, 1997

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:  19940818		Date of Discharge:  19960613

Length of Service (years, months, days):

	Active:    01  07  09  (Does not include lost time.)
	Inactive:  00  02  17

Time Lost During This Period (days):  

	Unauthorized absence:  None 
	Confinement:		  None

Age at Entry:  22

Years Contracted:  8

Education Level:  12				AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Service Medal, Navy “E.”

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

941104:	Commenced active duty for a period of 36 months. 

960416:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence from place of duty on 16 April 96
	Award:  Forfeiture of $250.00 pay per month for 1 month.  No indication of appeal in the record.

960418:	Retention Warning: Counseled for deficiencies in performance and conduct.  [Misconduct as evidenced by your Commanding Officer’s nonjudicial punishment on:  16 April 1996 for VUCMJ, Article 86, UA from place of duty on 11 April 1996.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960521:	NJP for violation of UCMJ, Article 134:  Fail to pay just debts from 20 March 96 to 14 May 96.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

960523:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.  If separation is approved, the characterization of service may be Other Than Honorable.

960523:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960528:	Commanding Officer, USS AMERICA, recommended discharge with under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “SA H_ (Applicant)’s misconduct warrants separation.  His presence is detrimental to morale and good order and discipline on board AMERICA.  He has no potential for further military service.  I strongly recommend that SA H_ (Applicant) be separated immediately from the naval service under other than honorable conditions by reason of misconduct due to commission of a serious offense.”

960613:	BUPERS directed the Applicant's discharge with under other than honorable conditions by reason of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960613 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable.  Indeed, the Applicant’s records contain 2 nonjudicial punishment proceedings for violation of UCMJ Article 86 (Unauthorized absence) and Article 134 (Debt, dishonorable failing to pay).  Violation of Article 134 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant contends that his discharge was inequitable because of his youth and immaturity at the time of service.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  Most servicemembers begin their service at a relatively young age.  It must be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board is authorized 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.  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 submitted four character references, four certificates of completion, and a certificate of achievement for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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), 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, Debt, dishonorably failing to pay.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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