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Docket No. ND02-00414

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

 ex-SR, USN
Docket No. ND02-00414

Applicant’s Request

The application for discharge review, received 020221, 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 021022.  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, as submitted

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2.  I have been a good citizen since discharge.

3.  My record of AWOL/UA indicates only minor or isolated offenses.

Documentation

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

Copy of questionnaire
Copy of checklist of instruction for intake interview for discharge review
Copy of Self-Help Guide to Discharge upgrading (4 pages)
Copy of DD Form 180
Certificate of completion dated February 19, 1993
Certificate of completion dated July 9, 1993
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910822 - 920717	ELS
		   USNR (DEP)	920724 - 921102	COG

Period of Service Under Review:

Date of Enlistment:  921103		Date of Discharge:  940730

Length of Service (years, months, days):

	Active:    01  08  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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:

930806:	Retention Warning from USS LASALLE (AGF-3):  Advised of deficiency (Failure to complete Basic Damage Control PQS in the prescribed time frame in accordance with LASALLEINST 3500.1G), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940506:	NJP for violation of UCMJ, Article 86 (5 specs): (1) Unauthorized absence from appointed place of duty on 20 Apr 94, (2) Unauthorized absence from appointed place of duty on 21 Apr 94, (3) Unauthorized absence from appointed place of duty from 0630, 12 Apr 94 to 1930, 14 Apr 94 (2 days/surrendered), (4) Unauthorized absence from 0630 - 0700, 6 Apr 94, (5) Unauthorized absence from appointed place of duty on 20 Apr 94.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940506:	Retention Warning from USS AMERICA (CV 66): Advised of deficiency (Misconduct as evidenced by Commanding Officer's nonjudicial punishment on 6 May 1994 for VUCMJ, Article 86, UA from appointed place of duty, to wit: Deck Department Quarters on 20 Apr 94; UA from appointed place of duty, to wit: Deck Department Quarters on 21 Apr 94; UA from his unit, to wit: USS AMERICA from 0630, 12 Apr 94 until 1930, 14 Apr 94 (2 days), UA from his appointed place of duty to wit: Deck Department Quarters on 20 Apr 94), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940518:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: Restricted Men's Muster at 0530, 12 May 94.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

940519:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: remedial PRT 3 times between 18 Apr 94 and 24 Apr 94 and 3 times between 2 May 94 and 8 May 94.
	Award:  Forfeiture of $416 per month for 1 month, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

940603:	USS AMERICA (CV 66) 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 the nonjudicial punishments under the UCMJ in current enlistment.

940603:	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.

940610:	Commanding Officer, USS AMERICA (CV 66) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

940614:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: Restricted Men's Muster on 1830, 7 Jun 94.
	Award: Three days confinement on bread and water.  No indication of appeal in the record.

940620:	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 940730 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 and 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.  Relief not warranted.

Issue 3.  The Board agrees that each offense that resulted in the Applicant receiving non-judicial punishment and/or a retention warning was a minor offense.  However, three or more punishments under the UCMJ within the current enlistment constitute a pattern of misconduct.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions and adverse counseling entries on other occasions.  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 the naval service.  An upgrade would be inappropriate.  Relief denied.

The Applicant 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.  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 5, effective 05 Mar 93 until 21 Jul 94), 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

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:  A6710/A9401/A9221/9229/A9235/A9217/A9223/