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Docket No. ND01-00383

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

ex-SR, USN
Docket No. ND01-00383

Applicant’s Request

The application for discharge review, received 010208, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 010615.  After a thorough review of the records, 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To Whom May Concern:  I think my discharge was proper.  I made a lot of mistakes when I was younger.  If I could do it all over again I would've use better judgement.  Since my discharge, I have no conviction, I am self-employed, college student, father of one.  I would be very pleased if the Review board vote to upgrade my discharge because I don't the bad judgements to affect the rest of my life and my family.

Documentation

Only the applicant's service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890929 - 900603	COG

Period of Service Under Review:

Date of Enlistment:  900604		Date of Discharge:  911211

Length of Service (years, months, days):

	Active:    01  06  08 (Doesn't exclude the lost time.)
	Inactive:  None

Age at Entry:  198			Years Contracted:  4

Education Level:  12			AFQT:  25

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  2.5 (1)		OTA:  2.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUA 

Days of Unauthorized Absence:  24 

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

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

Chronological Listing of Significant Service Events:

901011:	NJP for violation of UCMJ, Article 86:  on or about 0645, 90SEP14 - 0800, 909OCT08, member did without authority, absent himself from his organization (24 days).
	Award:  Forfeiture of $362 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

901011:	Retention Warning from Service School Command, San Diego, CA:  Advised of deficiency (found guilty at CO's NJP of violation of UCMJ, Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	    
910405:	NJP for violation of UCMJ, Article 134:  misprision of serious offense.
	Award:  Forfeiture of $376 per month for 1 month, restriction and extra duty for 14 days, reduction to E-X.  No indication of appeal in the record.

910503:	NJP for violation of UCMJ, Article 86:  unauthorized absence.
Award:  Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

910508:	Retention Warning from USS BERKELY:  Advised of deficiency (unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910920:	NJP for violation of UCMJ, Article 92:  disobeying a lawful written order or regulation (Art 1139 U.S. Navy Regulations); violation of UCMJ, Article 81:  conspiracy on 91SEP06 - helping a restricted crewmember.
	Award:  Forfeiture of $422 per month for 1 month, restriction and extra duty for 30 days, administrative separation.  No indication of appeal in the record.

910924:	CO, USS BERKELY (DDG 15) 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 offense as evidenced by CO's NJP on 3 May 1991, 5 April 1991 and 20 September 1991.

911012:	NJP for violation of UCMJ, Article 86:  unauthorized absence (UA from CO's personnel inspection on 91OCT09); violation of UCMJ, Article 91:  disobeying a lawful order from a petty officer second class (superior told service member to report to inspection on 91OCT09).
	Award:  Reduction to E-1, restriction and extra duties for 45 days, forfeiture of $377 per month for 2 months.  No indication of appeal in the record.

911016:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

911112:	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 and misconduct due to commission of a serious offense, that the misconduct warranted separation but suspension for a period of 12 months, and characterization of discharge is Under Other Than Honorable Conditions.

911119:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim):  "Concur with the finding of the board that SR (Applicant) be separated under other than honorable conditions, but due to the fact that he has been to mast five times during his enlistment I cannot concur that his separation be suspended.  He was warned and counseled on 11 October 1990 and 8 May 1991 and advised of corrective measures.  He has failed to comply with these warnings and has continued a pattern of misconduct.  SR (Applicant)'s presence is detrimental to the good order and discipline of the command and he is an administrative burden.  I strongly recommend discharge for the reasons as stated herein and that his discharge be under other than honorable conditions effective immediately."

911206:	BUPERS directed the applicant's discharge under other than 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 911211 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issue, the Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members.  Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country.  It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges.  The applicant's service is accurately characterized as having been performed under other than honorable conditions.  Relief is not warranted. 

The following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for disobeying a lawful written order or regulation, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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/A9301/A9221