Author: CAP
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Docket No. ND01-00451

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

 ex-AMSAR, USN
Docket No. ND01-00451

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Vets Center as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010829.  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: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Sm states that in his records.  There is only one Captains mast for being AWOL.  The reasoning was for personnel reason that he made a mistake.  Sm requested leave to take care of personnel business and was denied.  The restrictions of 45 days extra duty 45 days restriction, half a month pay times two, reduced to the lowest rank.  Sm was never allowed to full fill his contractual agreement due to A school paper shuffle.  Sm requested to be allowed in the service and was denied.  Sm reports that he was pushed from one command to the next and orders changed that never allowed him to do the job he enlisted for.  Sm request that a full investigation into his case be done. He believes the evidence will prove that he was at the very least a solid sailor.  Sm went AWOL because he was paying for a child (LES) that was not his and when requested to be allowed to go to court as requested by his state he kept getting refused.  Sm knows this is wrong but felt there was no other choice at that time.  Sm does agree that it was wrong.  Requested that you look into his records and request and upgrade deserving of an honorable discharge.  During the sm's tour he received armed forces service medal and ribbon, Armed forces expeditionary ribbon and medal, NATO medal and ribbon, Sea service deployment ribbon.  There is more evidence that is in the SM records that he does not have access too.    

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	951215 - 951218	COG

Period of Service Under Review:

Date of Enlistment:  951219		Date of Discharge:  970620

Length of Service (years, months, days):

	Active:    01  06  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  AMSAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  AFSM, AFEM, NM, SSDR 

Days of Unauthorized Absence:  53 

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

960626:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ Article 86: (2 Specs), Spec 1: Absence without leave on 960429; Spec 2 : UA 960520-960523 (3 days/S).
	Award:  Forfeiture of $203.00 per month for 1 month, restriction for 14 days (suspended for 6 months), extra duty for 14 days.  No indication of appeal in the record.

970530:	NJP for violation of UCMJ, Article 86: (6 Specs), Spec 1: UA from 970225-970226; Spec 2: UA 0630-0650, 970227; Spec 3: UA 0630-0736, 970306; Spec 4: UA 0630-0650, 970307; Spec 5: UA 0630-0711, 970313; Spec 6: UA 970401-970521 (50days/A); violation of UCMJ Article 90: Failure to obey order of a Superior Officer.
Award:  Forfeiture of $450.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

970610:	COMCRUDESGRU TWELVE recommended 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 970620 under other than 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:  “Sm states that in his records there is only one Captains mast for being awol.  The reasoning was for personnel reason that he made a mistake.  Sm requested leave to take care of personnel business and was denied.  The restrictions of 45 days extra duty 45 days restriction, half a month pay times two, reduced to the lowest rank.”  The NDRB found the applicant was found guilty at NJP on two separate occasions for committing serious offenses under the UCMJ.  The Board found no merit in this issue that he had only one NJP.  Relief is denied.

The applicant’s issue also states:  “Sm was never allowed to full fill his contractual agreement due to A school paper shuffle.  Sm requested to be allowed in the service and was denied.  Sm reports that he was pushed from one command to the next and orders changed that never allowed him to do the job he enlisted for.  Sm request that a full investigation into his case be done.”  The NDRB is chartered to review the discharge of a former member for propriety and equity.  The applicant was not allowed to fulfill his contractual agreement because of the misconduct he committed and not a paper work shuffle.  The Board also discovered that the applicant voluntarily changed his rating from AMH to AMS on 950215.  The applicant was denied reentry into the service because of the type discharge he received.  The Board determined the discharge was proper and equitable.  Relief denied.

The applicant’s issue states:  “He believes the evidence will prove that he was at the very least a solid sailor.  Sm went AWOL because he was paying for a child (LES) that was not his and when requested to be allowed to go to court as requested by his state he kept getting refused.  Sm knows this is wrong but felt there was no other choice at that time.  Sm does agree that it was wrong.  Requested that you look into his records and request and upgrade deserving of an honorable discharge.”  The NDRB does not agree with the applicant’s statement that he was a “solid sailor,” while on active duty.  Although there were no performance marks found in the applicant’s service record, in the short time he served on active duty, the applicant was found guilty at NJP on two separate occasions, for serious violations of the UCMJ.  The record is devoid of anything that would characterize his service as anything besides Other Than Honorable.  The applicant’s discharge was proper and equitable.  Relief denied.

The applicant’s issue states:  “During the Sm's tour he received armed forces service medal and ribbon, Armed forces expeditionary ribbon and medal, NATO medal and ribbon, Sea service deployment ribbon.”  The Board reviewed the positive aspects of the applicant’s service and found that his misconduct overshadowed any positive contributions he may have made.  Relief is denied.

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 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, Change 14, effective 03 Oct 96 until 11 Dec 97), 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/A9223/A9309/A9223/A9241/A9201/A9221