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Docket No. ND02-00488

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

ex-SR, USN
Docket No. ND02-00488

Applicant’s Request

The application for discharge review, received 020308, 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 American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member avers that he was deceived by his recruiter into thinking he would receive the training of his choice.  On this basis, he opines that upgrade of his characterization of service is warranted.

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
Credit information sheet (4 pages)
Copy of CDL
Employment history (3 pages)
Police record check
Foster PRIDE training certificate
Letter of recommendation from C_ E. P_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	860930 - 861020	COG

Period of Service Under Review:

Date of Enlistment:  861021			Date of Discharge:  880215

Length of Service (years, months, days):

	Active:    01  03  25
	Inactive:  None

Age at Entry:  17 Parental Consent 		Years Contracted:  4

Education Level:  10				AFQT:  50

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)			Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  56

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

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

Chronological Listing of Significant Service Events:

861022:	Applicant briefed on Navy's policy on drug and alcohol abuse.

870615:	NJP for violation of UCMJ, Article 86 (6 specs): (1) Unauthorized absence from 30May87 - 1Jun87, (2) Unauthorized absence from 0745 - 0815, 1Jun87, (3) Unauthorized absence from 0845 - 0945, 2Jun87, (4) Unauthorized absence from 1115, 2Jun87 to 0745, 9Jun87 (6 days/surrendered), (5) Unauthorized absence from place of duty on 11Jun87, (6) Unauthorized absence from 1300, 12Jun87 - 0715, 15Jun87 (2 days/surrendered), violation of UCMJ, Article 91 (3 specs): (1) Disobeyed a lawful order to carry milk onboard, (2) Disobeyed a lawful order to report to place of duty, (3) Disobeyed a lawful order to report to place of duty, violation of UCMJ, Article 92: Disobeyed a lawful regulation by sleeping in bunk with his dungarees, violation of UCMJ, Article 112a: Wrongfully used marijuana.
	Award:  Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

870720:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0530, 16Jun87 to 0800, 17Ju187 (31 days/surrendered), violation of UCMJ, Article 134: Break restriction on 16Jun87.
	Award: Bread and water for 3  days.  No indication of appeal in the record.

870720:	Retention Warning from USS MISSISSIPPI (CGN 40):  Advised of deficiency (Unauthorized absence and breaking restriction), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870810:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty, June 1987.  Inspection urinalysis June 1987.  Medical officer and DAPA determined Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: Member being processed for administrative discharge.  Previous training: None, EAOS: Oct90, TIS: 08 months, rate at time of incident: SR.  

870818:	Applicant to unauthorized absence 1145-1342, 18Aug87 and 1700-1800, 18Aug87.

870819:	Applicant to unauthorized absence 0700-0900, 19Aug87.

870820:	Applicant to unauthorized absence 1900-2000, 20Aug87.

870822:	Applicant to unauthorized absence 0700-0907, 22Aug87.

871013:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86 (4 specs):
	Specification 1 - 4: Failed to go at time prescribed to appointed place of duty, to wit: restricted men's muster.
	Charge II: violation of the UCMJ, Article 91 (3 specs):
	Specification 1: Disobeyed a lawful order from a Third Class Petty Officer, to hold sweepers.
Specification 2: Disobeyed a lawful order from a First Class Petty Officer to sleep in his rack vice sleeping on the couch.
Specification 3: Disobeyed a lawful order to perform extra duties.
	Charge III: violation of the UCMJ, Article 92:
	Specification: Disrespectful language towards a petty officer.
	Findings: to Charge I, II and III and specifications thereunder, guilty.
	Sentence: Confinement for 75 days, forfeiture of $250 per month for 3 months.
	CA 880105: Sentence approved and ordered executed.  

880122:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 29Dec87 - 2300, 12Jan88 (14 days),  violation of UCMJ, Article 112a: Wrongfully used marijuana.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

880122:	Medical evaluation found Applicant not dependent on alcohol or drugs.  Applicant not recommended for further service.

880122:	USS MISSISSIPPI (CGN 40) 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 drug abuse.  [Extracted from CO's message dated 24Jan88.]

880122:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from CO's message dated 24Jan88.]

880124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
 
880201:	NJP for violation of UCMJ, Article 92: Disobeyed a lawful order from legal officer on 26Jan88.
	Award: Restriction and extra duty for 14 days.  No indication of appeal in the record.

880209:	CNMPC 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 880215 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 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 one special court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his placement into a field of training not of his choice was a factor that contributed to his actions, 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.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should be 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 not warranted.

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 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 “afls14.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: A6730/A9453/A9221/A9217/A9223/