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

Docket No. ND02-00555

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

 ex-FR, USN
Docket No. ND02-00555

Applicant’s Request

The application for discharge review, received 020311, 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 021217.  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.  My discharge was inequitable because during my enlistment there was no way I would have asked to be discharged, if I knew by me being discharged that my records would be screwed up.  In other words I wasn't kicked out.  I had ask to get out for personnal reasons.

2.  The discharge was improper because there wasn't a proper understanding at that time of why I should stay in.  Anyway, the punishment I received was too severe compared to todays' standards.  Under current standards, I would not have received the same type of discharge!  My ability to serve was impaired by my youth & immaturity.  My record of non-judicial punishments (Article 15) Uniform Code of Military Justice - shows only minor isolated offenses.

3.  This discharge is unsuitable because I devoted my time & lived at that time for the Navy.  I had combat service, I received awards & decorations. I wish I would have had a better understanding of how my life would have ended of before I was seperated out of the service, or should I say before I had asked to get out.

Documentation

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

None

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:  891218		Date of Discharge:  911108

Length of Service (years, months, days):

	Active:    01  10  21
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 year obligor (29 Sep 89)*

*Enlistment Contract Not Found in Service Record (NFISR)

Education Level:  NFISR			AFQT:  NFISR

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.20 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Bronze Star

Days of Unauthorized Absence:  None

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:

891218	Enlisted MEPS Houston, Texas.

891218	Recruit Training Great Lakes, Illinois.

900531	Fleet Training Center San Diego for duty under instruction.

900618	Reported to USS CURTS (FFG 38) Yokosuka, Japan for two year tour of duty.  Tour expires July 1992.

900803:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 131 (2 specs): Perjury.
	Award: Forfeiture of $250 per month for 2 months, 3 days in the brig.  No indication of appeal in the record.

901220:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

901220:	Retention Warning from USS CURTS (FFG 38):  Advised of deficiency Unauthorized absence and making false log entries in liberty log.  Notified of corrective actions (Use better judgment while on liberty, return in a timely manner, incur no further violations of the UCMJ.) and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910712:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Forfeiture of $150 per month for 2 months, correctional custody for 30 days, reduction to FA.  Reduction suspended for 2 months.  No indication of appeal in the record.

910824:	Retention Warning from USS CURTS (FFG 38):  Advised of deficiency (Assault consummated by battery, robbery, and false official statement.), notified of corrective actions (Use better judgment while on liberty and don’t start fights or take other people’s property.  Incur no further violations of the UCMJ.) and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910826:	NJP for violation of UCMJ, Article 122: Robbery, violation of UCMJ, Article 128: Assault consummated by battery, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

910920:	USS CURTS (FFG 38) 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 four punishments under the UCMJ within current enlistment and misconduct due to commission of a serious offense as evidenced by violation of UCMJ Articles 128, 122 and 107.

910920:	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.

910920:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s Comments (verbatim):  FR Y_ (Applicant) is unsuitable for further military performance due to continued misconduct despite comprehensive counseling efforts.  He has demonstrated abrasive behavior toward his chain of command and refuses to obey orders (enclosures (6) and (8)).  He continues to be a major liberty risk having been involved in several liberty incidents (enclosures (5) and (6)) involving assault and robbery.  His professional performance is also poor requiring constant supervision on any job.  FR Y_ (Applicant) does not object to this separation (enclosure (2)).  Recommend separation from naval service with an other than Honorable Discharge.

911008:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

911018	Transferred to TPU San Francisco, California to await discharge.

911108	Discharged from United States Navy.  Advised not eligible for reenlistment due to misconduct – pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 911108 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:  The Board disagrees with the Applicant’s contention that his discharge was inequitable because he asked to get out for personal reasons and was not kicked out.  The Applicant was discharged for misconduct, due to a pattern of misconduct after numerous warnings and counseling sessions.  A service member may be processed for separation for a pattern of misconduct after three or more punishments under the UCMJ within the current enlistment.  In addition, service members will be dual processed for misconduct due to commission of a serious offense where appropriate.  The Applicant was awarded non-judicial punishment (NJP) on 4 occasions for the violation of UCMJ Articles 86, 92, 107, 122, 128, and 131.  UCMJ Articles 107, 122, and are offenses triable by court-martial, could result in a dishonorable or bad conduct discharge, and are considered to be serious offenses.  Relief denied.

Issue 2:  The Board disagrees with the Applicant’s assertion that his discharge was improper because his punishment was too severe by today’s standards.  When a sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service record is marred by award of NJP on 4 occasions and adverse counseling entries on 2 occasions.  The Applicant may believe that his ability to serve was impaired by his youth and immaturity.  However, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated he was unsuited for further service.  Relief denied.

Issue 3:  The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment does not guarantee an honorable discharge.  The Applicant served only 1 year, 10 months and 21 days of a four-year enlistment.  During his abbreviated enlistment, the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his repeated disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service.  An upgrade to under honorable conditions would be inappropriate.  Relief denied.

The following information is provided for the benefit of the Applicant.  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for an upgrade based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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, effective 15 Aug 91 until 
04 Mar 93), 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 “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/A9401/A9301/A9223/A9235/A9217/A9221