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Docket No. ND01-00228

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

ex-SR, USN
Docket No. ND01-00228

Applicant’s Request

The application for discharge review, received 001218, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010629.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  E4.3 EQUITY In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration provided that: E4.3.1.1 Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; E4.3.3.1.10 Prior Military Service and type of discharge received or outstanding post service conduct to the extent that such matters provide a basis for a more through understanding of the performance of the applicant during the period of service which is the subject of the discharge review; E4.3.3.1.12 RECORDS OF NONJUDICIAL PUNISHMENT.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	860131 - 860904	COG

Period of Service Under Review:

Date of Enlistment:  860905		Date of Discharge:  920214

Length of Service (years, months, days):

	Active:    05  05  04
	Inactive:  None

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

Education Level:  12			AFQT:  26

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.03 (6)	Behavior:  3.00 (6)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  6 

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

GENERAL UNDER HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880418:	Retention Warning from [USS SEATTLE (AOE-3)]:  Advised of deficiency (Misconduct due to UA for four days), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880418:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 880331-880404 [4days/S].
Award:  Forfeiture of 1/2 months pay for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

900330:	NJP for violation of UCMJ, Article 86(2 Specifications), Spec 1: Unauthorized absence from 0630, 900306 to 1355, 900306, Spec 2: Unauthorized absence from 0630, 900314 to 1055, 900314.
Award:  Reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

910621:	Retention Warning from [USS HUNLEY (AS-31)]:  Advised of deficiency (By your misconduct as evidenced by your Captain's Mast of 910621 for disobeying a lawful order, disrespectful in language to a Master Chief Petty Officer and disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910621:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order, violation of UCMJ Article 91: Disrespectful in language toward a Master Chief Petty Officer, violation of UCMJ Article 134: Disorderly conduct.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2 (suspended for 6 months).  Appealed.  Appealed denied (910701)

911204:	Punishment of reduction in rate to E-2 suspended at CO's NJP of 910612 vacated due to continued misconduct.

911204:	NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: Failure to go at the time prescribed to his appointed place of duty, Spec 2: Unauthorized absence 911130-911202 [2days/S], violation of UCMJ Article 91: Disobey a lawful order.
Award:  Restriction and extra duty for 45 days, reduction to E-1.  Appealed.  Appealed denied (911213).

911209:	[USS HUNLEY (AS-31)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offenses as evidenced by your four (4) NJP's during your current enlistment.

911211:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920117:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

920127:	NJP for violation of UCMJ, Article 86: UA, violation of UCMJ Article 92: (4 Specs) Disobey a lawful order.
Award:  3 days Bread & Water.  No indication of appeal in the record.

920127:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious military offense.  

920210:	BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920214 general under honorable conditions for misconduct due to a pattern of misconduct (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’s issue states:  “E4.3 EQUITY In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration provided that: E4.3.1.1 Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; E4.3.3.1.10 Prior Military Service and type of discharge received or outstanding postservice conduct to the extent that such matters provide a basis for a more through understanding of the performance of the applicant during the period of service which is the subject of the discharge review; E4.3.3.1.12 RECORDS OF NONJUDICIAL PUNISHMENT”  After careful review of the applicant’s service record and current regulations, the NDRB found no change in material respects from policies and procedures under which the applicant was discharged.  The NDRB found no substantial enhancement of rights afforded respondent’s in discharge proceedings have been made since the applicant’s discharge.  The applicant failed to provide any documentation to support his request for an upgrade to the discharge based on post service accomplishments.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended 

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 – A PATTERN OF MISCONDUCT. 

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 “afls10.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.
INDEX:  A6750/A9221/A9217