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

ex-SR, USNR
Docket No. ND01-00491

Applicant’s Request

The application for discharge review, received 010306, 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 list 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, 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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Under current standards, I would not receive the type of discharge I did.

2.  My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good.

3.  I had combat service.

4.  My record of promotions showed I was generally a good servicemember.

5.  I was so close to finishing my tour that it was unfair to give me a bad discharge.

6.  I have been a good citizen since discharge.

7.  My record of NJP's/Article 15's indicates only isolated or minor offenses.

8.  My record of AWOL/UA indicates only minor or isolated offenses.

9.  Personal problems impaired my ability to serve.

10.  The punishment I got was too severe compared with today's standards.

11.  The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense.

12.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

13.  I had applied or tried to apply for conscientious objector status, but was unfairly denied or told to forget it.

14.  I had applied or tried to apply for a hardship discharge but was unfairly denied or told to forget it.

15.  I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

Documentation

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

Statement from applicant , undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890104 - 890605	ELS
		   
Period of Service Under Review:

Date of Enlistment:  900731		Date of Discharge:  920922

Length of Service (years, months, days):

	Active:    01  11  14
	Inactive:  00  02  08

Age at Entry:  24			Years Contracted:  8

Education Level:  9 GED		AFQT:  35

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.60 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  39

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:

901015:	Retention Warning from [Recruit Training Command, Naval Training Center, Great Lakes, IL]:  Advised of deficiency (4th Class Swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910108:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement:  Jun87: Running a red light; paid $50.00.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910605:	Applicant to unauthorized absence 0600, 5Jun91.

910617:	Applicant from unauthorized absence 0700, 17Jun91 (12 days/surrendered).

920205:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from unit  (2) Unauthorized absence from place of duty.
	Award:  Forfeiture of $220 per month for 2 months, restriction and extra duty for 40 days.  Forfeiture of $170.00 for 2 months suspended for 6 months.  No indication of appeal in the record.

920513:	Vacated suspended forfeiture of $170.00 for 2 months awarded at CO's NJP of 5Feb92 due to continued misconduct.

920513:	NJP for violation of UCMJ, Article 86: Unauthorized absence for 2 hours and 18 minutes.
	Award: Forfeiture of $220 per month for 2 months, restriction for 60 days.  Forfeiture of $190.00 per month for 2 months suspended for 6 months.  No indication of appeal in the record.

920601:	Retention Warning from [USS VREELAND (FF 1068)]:  Advised of deficiency (Unauthorized absence on numerous occasions and have established a pattern of misconduct displaying an attitude not supportive of your chain of command.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920612:	Applicant declared a deserter.  Unauthorized absence since 0830, 4Jun92.

920701:	Applicant apprehended by military authorities 2350, 1Jul92 (27 days).

920721:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0830, 4Jun92 until 2350, 1Jul92 (27 days/apprehended).
	Award: Forfeiture of $370 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

920817:	Transient Personnel Unit, Great Lakes, IL notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your Commanding Officer's nonjudicial punishment of 5 February 1992, 13 May 1992 and 21 July 1992.

920817:  	Applicant advised of his rights and having consulted 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.

920820:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

920917:	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 920922 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).

In response to applicant’s issues 1, 10 and 11, the Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  The Board finds no merit in these issues.

In response to applicant’s issues 2-5, 7 and 8, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated offense".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  While the applicant’s enlisted performance evaluation averages were good, they do not mitigate the applicant’s misconduct of record.  The Board will not grant relief on the basis of these issues.

In response to applicant’s issues 9 and 12-15, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command.  To permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issue 6, 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 (D).  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.  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