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Docket No. ND01-00629

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

 ex-MMFR, USN
Docket No. ND01-00629

Applicant’s Request

The application for discharge review, received 010406, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before a traveling panel closest to (left blank).  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant a fully honorable discharge. 

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214
Letter from applicant to the representative, undated
Copy of applicant's resume
Copy of certificate of distinction
Copy of certificate of completion dated April 21, 2000
Copy of education progress report dated April 20, 2001
Copy of request for driver license dated April 3, 2001
Copy of certificate of completion dated April 20, 2001
Copy of certificate of completion dated April 3, 2001
Copy of certificate of completion dated April 13, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890825 - 900618	COG

Period of Service Under Review:

Date of Enlistment:  900619		Date of Discharge:  930121

Length of Service (years, months, days):

	Active:    02  07  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31/37

Highest Rate:  MMFR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.10 (2)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with Bronze Star, SSDR, NUC, NDSM

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

900620:	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/drug abuse:  Shoplifting, 12/89, 8 hours community service.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

900625:	Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL:  Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901218:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at time prescribed to appointed place of duty, limited liberty muster on 2200, 20Nov90, (2) Fail to go at time prescribed to appointed place of duty, limited muster on 2400, 1Dec90.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

901218:	Retention Warning from Service School Command, Great Lakes, IL:  Advised of deficiency (Poor military performance, without authority, fail to go at the prescribed time to appointed place of duty, to wit: limited liberty muster.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910228:	NJP for violation of UCMJ, Article 121: Steal 3 candy bars, 40 cents each, the property of the Naval Exchange Fleet Store on 30Jan91.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to FR.  No indication of appeal in the record.

910409:	NJP for violation of UCMJ, Article 86 (10 specs): Failed to go at time prescribed to appointed place of duty, restricted personnel muster, various times and dates between 1Mar91 to 10Mar91.
	Award: Restriction and extra duty for 14 days.  No indication of appeal in the record.

910629:	NJP for violation of UCMJ, Article 121: Larceny.
	Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

920221:	Retention Warning from USS MOBILE (LKA 115):  Advised of deficiency (Questionable behavior while on liberty is threatening your Navy career and is prejudicial to good order and discipline.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920515:	NJP for violation of UCMJ, Article 89: Disobeying a lawful order.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

920828:	NJP for violation of UCMJ, Article 92 (3 specs): Failure to obey a lawful order.
	Award: Forfeiture of $392 per month for 2 months, bread and water for 3 days.  No indication of appeal in the record.

920902:	USS MOBILE (LKA 115) 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 three NJP's within current enlistment.

920902:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921013:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 3 to 0, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and, by a vote of 2 to 1, recommended discharge under honorable conditions (general).

921209:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930113:	BUPERS directed the applicant's discharge under honorable conditions (general) 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 930121 under honorable conditions (general) 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The applicant’s representative submitted the following as issue 1: “(Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant a fully honorable discharge.”  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under 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.  The applicant’s service was marred by the award of non-judicial punishment (NJP) on six occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence, larceny and failing to obey a lawful order.  An upgrade to honorable would be inappropriate.  Relief is therefore denied concerning this issue.

The applicant’s representative submitted the following as issue 2: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant provided a resume, five certificates of completion and an education progress report as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced physical evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs or alcohol in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  Relief denied.

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 121, for larceny, 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/A9217/A9221/A9223