Author: CAP
Last saved by: Department of the Navy
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Docket No. ND02-00318

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

 ex-OS3, USN
Docket No. ND02-00318

Applicant’s Request

The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on two minor incidents that occurred after 10 yrs of active service.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on April 15, 2002 and the following comments are hereby submitted: The applicant had over nine years of honorable service, he was awarded the Navy & Marine Corps Achievement Medal. 1993 - 1995 had mostly 4.0 in performance. 1996 his Commanding Officer said he was the most qualified CIC Watch Supervisor, his 1997 & 1998 evaluation was outstanding, he was even assigned to recruiting duty, which attest to the caliber of sailor he was.  We fully support the contention for upgraded discharge. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for upgrade discharge to honorable.

Documentation

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

Copy of DD Form 214
Copy of certificate for Navy and Marine Corps Achievement Medal dated 18Mar98
Copy of honorable discharge certificate dated 21Dec93
Copy of honorable discharge certificate dated 15Dec99

PART II - SUMMARY OF SERVICE

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

		Inactive: USNR (DEP)	900111 - 900121	COG
		Active:   USN 		900122 - 931221	HON
			   USN			931222 - 991215	HON

Period of Service Under Review:

Date of Enlistment:  991216		Date of Discharge:  000531

Length of Service (years, months, days):

	Active:    00  05  16
	Inactive:  None

Age at Entry:  30			Years Contracted:  6

Education Level:  12			AFQT:  57

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  1.00 (2)		OTA:  2.75

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, NUC, NER, GCM (2), NDSM, SASM (3), SSDR (4), KLM

Days of Unauthorized Absence:  4

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

991226:	Retention Warning:  Advised of deficiency (Failed the physical readiness program for the first time in a 4-year period, failure due to exceeding height/weight and body fat limits.  The date of the official PRT body composition measurement was 10 Nov 99.  At that time, body fat measured at 25%.  Weight measured at 236 lbs.  Height measured at 76 inches), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	Note:  PRT failure occurred prior to current enlistment.  Applicant was permitted to re-enlist on 991216 with failure on record.

000309:	Retention Warning:  Advised of deficiency (Failure to pay just financial obligations in a proper and timely manner per MILPERSMAN 1910-140 as evidenced by NEXCARD letter of indebtedness dated 21 Feb 00 for the amount of $129.00 and $230.00 balance still due on the Applicant’s government travel card.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000421	Applicant received NEXCARD letter of indebtedness dated 21 Apr 00 for the amount of $270.29.

000421	Mental Status Evaluation:  Adjustment disorder with depressed mood.  Medical Authority recommends administrative separation.

000517:	Retention Warning:  Advised of deficiency (Failed the physical readiness program for the first time in a 4-year period of the post-moratorium period.  This recent failure is due to exceeding height/weight and body fat limits.  The date of the official PRT body composition measurement was 18 Apr 00.  At that time, body fat measured at 24%.  Weight measured at 244 lbs.  Height measured at 76 inches.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000519:	NJP for violation of UCMJ, Article 134: Dishonorably failing to pay, violation of UCMJ, Article 86: Absence without leave.
	Award: Restriction for 60 days, reduction to OS3.  No indication of appeal in the record.
	Note:  Unauthorized absence approximately five days. [Extracted from CO’s letter of 15 Jun 00.]

000523:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by failure to pay just debts.

000523:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000524	Medical authority recommends expeditions administrative separation with suspension of 60 days restriction.

000615:	Commanding Officer, Navy Element, Headquarters United States Space Command, directed discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
	Commanding Officer’s verbatim comments:  [In summary, the command has afforded Petty Officer G_ (Applicant) ample opportunities and counseling to correct his financial situation.  However, the overwhelming financial situation he placed himself in clearly had a significant impact on his professional career and family affairs.  In lieu of all the assistance and counseling, Petty Officer G_ (Applicant) became an administrative burden to this command and the Navy.]  Extracted from CO’s letter of 15 Jun 00.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000531 with a discharge characterization of general (under 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 and 2:  The Applicant claims his discharge was inequitable because it was based on two minor incidents that occurred after 10 years of service.  The Board is authorized to examine only the enlistment during which the discharge under review was awarded.  Honorable prior service is not cause for relief.  The summary of service clearly documents the pattern of misconduct, which resulted in the Applicant’s discharge.  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.  Relief not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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	

RECORD OF VOTE

BOARD MEMBER			CHARACTER		BASIS/REASON 

W. ECKERT, CAPT, USN		Relief not warranted		Relief not warranted
President

W. BRIGGS, LTCOL, USMC	Relief not warranted		Relief not warranted
Member

B. DUNCAN, MAJ, USMC		Relief not warranted		Relief not warranted

J. HILTON, LT, USN		Relief not warranted		Relief not warranted 
Member

N. PALUMBO, CDR, USNR	Relief not warranted		Relief not warranted
Recorder

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT, states:

	_______________________________________________________

Responsible	BUPERS (Pers-83)                    Phone:  DSN                224-8245
Office	                                                          COM        (703)614-8245
	                                                          FAX                224-8194
	_______________________________________________________

Policy	Members may be separated when during the current enlistment they have:

•	two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof);

•	three or more unauthorized absences, each is more than 3 days, but less than 30 days duration;

•	a set pattern of failure to pay just debts; or

•	a set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders, decrees, or judgments concerning dependent support; and

•	violated a NAVPERS 1070/613, Administrative Remarks counseling/warning (MILPERSMAN 1910-204) specifically addressing the non-support.

A member must have violated a NAVPERS 1070/613 warning prior to processing.  A counseling and warning is legally binding on the Navy.  The typical correct sequence is NJP - NAVPERS 1070/613 - NJP.  There is no requirement for a commanding officer to award a NAVPERS 1070/613 following NJP.  That decision should be based on the circumstances of the situation.  A common error occurs when commands issue a NAVPERS 1070/613 warning following the second NJP.  In these instances, the member is essentially being given another opportunity by the commanding officer to correct the deficiency and processing for pattern of misconduct in inappropriate.  Another common error is initiating processing for pattern of misconduct without a NAVPERS 1070/613 warning.

All offenses processed or considered under Pattern of Misconduct must have occurred in the current enlistment.
	_______________________________________________________

Procedures	Use this table to determine processing procedures.
	
WHEN... | THEN use...
one of the offenses requires mandatory processing or the commanding officer believes the circumstances surrounding the offense warrant OTH per MILPERSMAN 1910-300 | Administrative Board Procedures (MILPERSMAN 1910-404)
the commanding officer believes that the circumstances surrounding the offense do not warrant an OTH | Notification Procedures (MILPERSMAN 1910-402)
	_______________________________________________________

Characterization	Further guidance on characterization of service is provided in
of Separation	MILPERSMAN 1910-300.  This table provides general information based on type of procedures used.

IF...

THEN the least favorable
characterization...

the Notification Procedure is used | is GEN per MILPERSMAN 1910-300
the Administrative Board Procedure is used | is OTH per MILPERSMAN 1910-300

	If the member has less than 180 days of service an Entry Level Separation may be appropriate.  See MILPERSMAN 1910-308 for further guidance.
	_______________________________________________________

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/A9235/A9219/A9203/9201/A9221