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

 ex-AOAR, USNR
Docket No. ND01-00754

Applicant’s Request

The application for discharge review, received 010509, requested that the characterization of service on the discharge be changed to General/under Honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  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

1.  I feel my discharge is improper because the events leading to my captains mast were unfairly reviewed.

Documentation

In addition to the service record, 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:   None
	Inactive: USNR (DEP)	941206 - 950506	ELS

Period of Service Under Review:

Date of Enlistment:  950531		Date of Discharge:  970214

Length of Service (years, months, days):

	Active:    01  08  10
	Inactive:  00  00  04

Age at Entry:  19			Years Contracted:  8

Education Level:  11			AFQT:  53

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  0.00 (0)	Behavior:  0.00 (0)		OTA:  0.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  XX

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:

950605:	Applicant ordered to active duty under the Active Mariner Program.

960405:	Applicant to unauthorized absence 1945, 5Apr96.

960423:	Applicant from unauthorized absence 2100, 23Apr96 (18 days/apprehended).
960509:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 80:
	Specification: Attempt to escape being apprehended.
	Charge II: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence.
	Charge III: violation of the UCMJ, Article 92 (3 specs):
	Specification 1: Violating a lawful general order.
	Specification 2: Violating a lawful general order.
	Specification 3: Violating a lawful general order.
	Finding: to Charge I, II and III, and the specifications thereunder, guilty.
	Sentence: Confinement for 23 days, reduction to AOAR.
	CA action 960513: Sentence approved and ordered executed.

960509:	Retention Warning:  Advised of deficiency (Article 80: Attempt to escape being apprehended, Article 86: Unauthorized absence, Article 92 (3 specs): violating a lawful general order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960528:	Applicant released from confinement and returned to full duty.

960921:	NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence.
	Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960930:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

961002:	Applicant released from confinement and returned to full duty.

970127:	Commander, U.S. Naval Forces, Japan directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970214 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).

Issue 1.  The applicant states, his discharge was improper because the events leading to his Captain’s Mast were unfairly reviewed.   The applicant failed to provide any documentary evidence to support this issue.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for a discharge upgrade, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief is denied.

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