Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00861

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

 ex-AR, USN
Docket No. ND01-00861

Applicant’s Request

The application for discharge review, received 010614, 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.  In the acknowledgement letter to the applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Subsequent to the application, applicant converted case to a personal appearance hearing and obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted on 020517.  The applicant failed to appear for the scheduled personal appearance hearing and therefore is no longer eligible for review by this Board.  A documentary review was conducted.  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.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

I am requesting an upgrade based on the following 
1.  I had requested a discharge from the navy due to family problems.  My wife and children had moved out of state.  I constantly found it more difficult to focus.  I was reporting back to base late.  I was finding it extremely difficult to deal with the separation.  I was informed that the only separation I can receive was a misconduct discharge, which I accepted. I have since then led a good life.  I am back in college and have received commendations.  My children are talking about joining the military.  I was also looking to join the reserves and seeking future employment.  Thank you

2.  Change discharge to General Under Honorable Condition

3.  The applicant was a 4.0 - 3.5 sailor until he started experiencing family problems. During his post service, he has made the dean list in college and also has been elected a member of Delta Mu Honor Society.  He now regrets his mistake while on active.

4.  We concur with the applicant's contention that his discharge be upgraded to General Under Honorable Conditions and ask that he be granted clemency based on his excellent post service record.

These issues do not supercede prior submitted issues.

Documentation

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

Copy of certificate (Dean's List) dated November 17, 2000
Copy of certificate of election in recognition of high attainment dated 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	850417 - 860501	COG

Period of Service Under Review:

Date of Enlistment:  850502		Date of Discharge:  871014

Length of Service (years, months, days):

	Active:    02  05  13
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  90

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (2)	Behavior:  3.10 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, SSDR, NEM, AFEM

Days of Unauthorized Absence:  52

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.  Discharged in absentia.

Chronological Listing of Significant Service Events:

860627:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0100, 16Jun86 until 0700, 18Jun86 (2 days/surrendered).
	Award: Forfeiture of 1/2 pay per month for 1 month, restriction and extra duty for 30 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

860628:	Retention Warning from Attack Squadron THIRTY-FOUR:  Advised of deficiency (Misconduct as evidenced by violation of the UCMJ, documented by your NJP punishment on 27 June 1986, for violation UCMJ Article 86 - Unauthorized absence from unit from 0700, 16 June 1986 until 0700, 18 June 1986.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870526:	Retention Warning from Attack Squadron THIRTY-FOUR:  Advised of deficiency (Misconduct, specifically, a pattern of dishonorable failure to pay just debts.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870601:	Applicant to unauthorized absence 0730, 1Jun87.

870603:	Applicant from unauthorized absence 0730, 3Jun87 (2 days/surrendered).

870622:	Applicant to unauthorized absence 0730, 22Jun87.

870625:	Applicant from unauthorized absence 0845, 25Jun87 (3 days/ surrendered).

870708:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $100 per month for 1 month, restriction for 20 days, reduction to AA.  No indication of appeal in the record.

870823:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0730, 1Jun87 to 0730, 3Jun87 (2 days/surrendered).
	Award: Reduction to AR.  No indication of appeal in the record.

870823:	Attack Squadron THIRTY-FOUR 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 CO's NJP on 27 June 86; VUCMJ Art 86 - Unauthorized absence 16 June - 18 June 86 (2 days); CO's NJP on 8 Jul 87; VUCMJ Article 86 - Unauthorized absence 22 June - 25 June 1987 (3 days); CO's NJP on 23 August 1987: VUCMJ Article 86 - Unauthorized absence 1 June - 3 June 87 (2 days).

870823:	Applicant advised of his rights and having elected not to consult 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.

870831:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim):  AR (applicant) has been an overwhelming administrative burden to this command and the Naval Service as evidenced by his three CO's Masts (enclosures (5), (6), (7), (8), (9), (10), and (11)), below average performance evaluations (enclosures (12) and (13)), numerous unauthorized absences (enclosures (9), (10) and (11)), failure to advance to petty officer, constant indebtedness problems (enclosure (15)), and overall apathy and flagrant disregard for his responsibilities, regulations and the Navy.  The member has been given ample time and opportunity to conform his behavior to the standards outlined in the UCMJ and other regulations including a Page 13 counseling/warning statement (enclosure (4)) and has made little or no effort to improve his behavior, performance or military bearing despite all counseling, warnings and disciplinary actions.

	AR (applicant) is a useless asset to this command.  He has no potential for future Naval Service and has my strongest possible recommendation for an Administrative Separation with Other Than Honorable characterization.

870901:	Applicant to unauthorized absence.

871006:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 871014 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).

Issues 1-4.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his family problems were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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/A9307/A9221/A9201/A9217