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Docket No. ND02-00844

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

ex-MMFR, USN
Docket No. ND02-00844

Applicant’s Request

The application for discharge review, received 020529, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Anderson, SC.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030221.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  27 Apr 02, Hello sir/ma'am, my name is D_ H. H_. I was previously discharged from the navy on 14 Nov 01.  I can't say I didn't deserve the discharge I got, but with all do respect sir/ma'am I would really appreciate it if you would please hear me out.  I know the things I did were very childish.  If I could think of a good excuse to give you, I would, but there really isn't one.  But my reason for this request is I wish to further my education but I really don't have the funds without help.  But having an other than honorable it is almost impossible because I would probably need government help.  I know I should have thought about all of this sooner, but I hope it's not to late.  I have had a job the past 4 months, and am trying to better myself.  But without college I can not better myself to the extent I would like.  But I realize without your consideration this will not be possible.  Thank you for considering my case.

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):

	Inactive: USNR (DEP)	991110 - 991129	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  991130		Date of Discharge:  011114

Length of Service (years, months, days):

	Active:    01  11 15 (Does not exclude time lost)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence: 66

*No Marks Found in the service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000811:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: (4 Specifications), Unauthorized absence.  Specification 1: UA 000714 to 000811; Specification 2: UA 000705 to 000714; Specifications 3: UA from 0715-2200, 000704; Specification 4: UA from 000612 to 000619. 
	Finding:  to Charge I and the specifications 1, 2, 3 and 4 thereunder, guilty.
	Sentence:  Confinement for 25 days, forfeiture of $500.00 pay per month for 1 month.
	CA action 000911:  Sentence approved.

001025:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 108: Damage to military property, violation of UCMJ, Article 134: Disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
001025:	NJP for violation of UCMJ, Article 108: Damage to military property, violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
	Award:  Forfeiture of $503.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

001206:	Punishment of forfeiture of $503.00 pay per month for 1 month suspended at CO's NJP of 001025 vacated due to continued misconduct. 

001206:	NJP for violation of UCMJ, Article 86: (3 Specifications), Failure to go to appointed place of duty.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction for 7 days.  No indication of appeal in the record.

010328:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence.  Charge II: violation of the UCMJ, Article 87: Missing movement.  Charge III: violation of the UCMJ, Article 91: Insubordinate conduct toward a petty officer.
	Finding:  to Charge I, II, III, and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $779.00 pay per month for 1 month, restriction for 60 days, reduced to E-1.
	CA action 010328:  Only so much of the sentence adjudged as provides for restriction for 60 days, reduction in rate to E-1, and forfeiture of $643.19 pay per month has been affirmed pursuant to Article 64{B}.  Article 64 {C} having been complied with, the sentence as thus modified will be duly executed.

010512:	NJP for violation of UCMJ, Article 86: (10 Specifications), Unauthorized absence.
	Award:  Forfeiture of $500.00 pay per month for 2 months.  No indication of appeal in the record.

010925:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence.  Charge II: violation of the UCMJ, Article 92: Failure to obey lawful order.
	Finding:  to Charge I, II, and the specifications thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $500.00 pay per month for 1 month.
	CA action 010925:  Sentence approved and ordered executed.

010926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

010926:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010930:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

011016:	Commander, U.S. Naval Forces, Japan authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011114 under other than honorable conditions for misconduct due to the commission of a serious offense (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 three nonjudicial punishments and three summary court-martials.  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.  An upgrade to honorable would be inappropriate.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 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 31, dated 20 Feb 01, effective 25 Jan 01 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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:   A6750/A9453/A9217/A9223/A9449/A9221