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

 ex-OSSA, USNR
Docket No. ND01-01113

Applicant’s Request

The application for discharge review, received 010821, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419.  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.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

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 (2 copies)
Character reference dated May 16, 2000
Character reference dated May 17, 2000
Character reference dated May 23, 2000
Character reference dated May 24, 2000
Character reference dated August 1, 2000
Letter from applicant dated January 1, 2001
Sixteen pages from service record
Copy of leave and earnings statement dated 01-3Jul94
Copy of leave and earnings statement dated 01-31May94
Copy of leave and earnings statement dated 01-30Jun91
Copy of leave and earnings statement dated 01-31Aug91
Copy of leave and earnings statement dated 01-30Sep91
Copy of leave and earnings statement dated 01-31Oct91
Copy of leave and earnings statement dated 01-31Dec91

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  900828		Date of Discharge:  940819

Length of Service (years, months, days):

	Active:    03  09  14
	Inactive:  00  02  07

Age at Entry:  17			Years Contracted:  8

Education Level:  12			AFQT:  49

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.43 (7)	Behavior:  3.40 (7)		OTA:  3.68

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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:

901107:	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 preservice civil involvement/drug abuse:  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found not factual, this waiver is void and you could be subject to other judicial or administrative proceedings, (1) Driving without a license, 10/90, Selma, AL, provided proof of license possession, (2) Disorderly conduct, 10/90, Selma, AL, paid $94.00 fine.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910509:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order, did on or about 27Apr91, fail to obey same by wearing ear rings; violation of UCMJ, Article 128: Did on or about 29Apr91 assault SA, by striking SA in the face and back of the head with his fist.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

921027:	Civil Conviction: Norfolk General District Court for violation of reckless driving (accident).
Sentence: Fined $100.00 plus court cost.

921027:	Retention Warning from USS JOHN F. KENNEDY (CV 67):  Advised of deficiency (Misconduct as evidenced by your conviction on 20Aug92 for reckless driving), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

921216:	NJP for violation of UCMJ, Article 91: Disobey lawful order of E-7 on 28Nov92, to wit: to surrender his armed forces identification card, violation of UCMJ, Article 92: Dereliction of duty, to wit: negligently failed to remove an earring from his ear on 28Nov92, violation of UCMJ, Article 109: Willfully and wrongfully destroy a plexiglas panel in a bus stop, of some value, the property of Comune Di Trieste; violation of UCMJ, Article 128 (2 specs): (1) Unlawfully strike E-7 in the face with his fist on 28Nov92, (2) Unlawfully push E-4 with his hands on 28Nov92.
	Award: Forfeiture of $200 per month for 2 months, restriction for 60 days, reduction to OSSA.  No indication of appeal in the record.

921217:	Retention Warning from USS JOHN F. KENNEDY (CV 67):  Advised of deficiency (Misconduct as evidenced by your captain's mast on 16 December 1992, for violation of the UCMJ, Article 91: Disobey order of E-7 on 28 November 1992, to wit: To surrender his Armed Forces Identification Card; Article 92: Dereliction of duty, to wit: Negligently failed to remove an earring from his ear on 28 November 1992; Article 109: Willfully and wrongfully destroy a plexiglas panel in a bus stop, of some value, the property of Comune Di Trieste on 28 November 1992; Article 128 (2 specifications): (1) Unlawfully strike E-7 in the face with his fist on 28 November 1992; (2) Unlawfully push E-4 with his hands on 28 November 1992), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940323:	NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 5Feb94, to wit: weekend duty section, violation of UCMJ Article 112: Found drunk on duty, while in the weekend duty section on 5Feb94, violation of UCMJ, Article 134: Drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces on 5Feb92.
	Award: Forfeiture of $531 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  No indication of appeal in the record.

940706:	NJP for violation of UCMJ, Article 112: Found drunk while in a duty status, on board USS JOHN F. KENNEDY (CV -67).
	Award: Forfeiture of $466 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSA.  No indication of appeal in the record.

940804:	NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 1800, 3Aug94, to wit: by leaving the roof of Building 620, which was his extra duty assignment; violation of UCMJ, Article 134: Having received lawful command issued by O-3, to wit: perform 2 hours of extra duty, an order which it was duty to obey, at building 620, on or 3Aug94.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

940715:	USS JOHN F. KENNEDY (CV 67) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by all punishments you received under the UCMJ during your current enlistment.

940802:	Applicant advised of his rights and having elected not to consult 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.

940803:	Drug and Alcohol Abuse Evaluation: Applicant not psychologically or physical dependent on drugs or alcohol.

940808:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due commission of a serious offense.

940822:	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 940819 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. A characterization of service of under other than 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on five occasions and adverse counseling entries on other occasions.  The applicant provided no credible documentation to support his allegations of racism or that his command abused its authority.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

Issue 2.  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.  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 denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), 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