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Docket No. ND03-00038

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

ex-FR, USNR
Docket No. ND03-00038

Applicant’s Request

The application for discharge review, received 20021004, 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.  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 hearing are held in the Washington, DC 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 20030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation

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

Copy of DD Form 214
Letter from Applicant dated June 29, 1999 (2 pages)
Report of Separation and Record of Service
Letter from Applicant dated July 7, 1999
Boiler Operators License dated June 3, 2002
Certificate of Appreciation

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  880907		Date of Discharge:  910611

Length of Service (years, months, days):

	Active:    02  09  14
	Inactive:  00  00  20

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  25

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (2)	Behavior:  2.90 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE"E", HSM, NDSM, MUC

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:

880927:	Ordered to active duty for 36 months under the Active Mariner program.

890707:	Retention Warning from [SSC, Great Lakes, IL]:  Advised of deficiency (Poor military performance, without authority absent himself from your organization, to wit: Service School Command, Great Lakes, IL, and being disorderly, which conduct was to the prejudice of good order and discipline in the armed forces), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890707:	NJP for violation of UCMJ, Article 86: (2 Specs), unauthorized absence, Spec 1: 2100, 890610 to 0700, 890611; Spec 2: 2000, 890611 to 0500, 890612, violation of UCMJ, Article 134: Disorderly conduct.
	Award: Forfeiture of $50.00 pay per month for 1 month.  No indication of appeal in the record.

890901:	Retention Warning from [USS SAMUEL GOMPERS (AD-37)]:  Advised of deficiency (Violation UCMJ Article 86 (2 Specs) unauthorized absence, Article 134 Disorderly conduct, Awarded: Forfeiture $50 x 1.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900122:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

910413:	NJP for violation of UCMJ, Article 113: Sleeping on watch.
	Award: Forfeiture of $100.00 pay per month for 1 month, restriction to the limits of USS SAMUEL GOMPERS (AD 37), extra duty for 10 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

910427:	Punishment of RIR to FA suspended at CO's NJP of 910413 vacated this date due to continued misconduct.

910427:	NJP for violation of UCMJ, Article 86: (3 Specs), failed to go to appointed place of duty on 910317, 910319, and 910407, violation of UCMJ, Article 92: Disobeying a lawful written order, to wit: Restricted Orders, by leaving the ship while in a restricted status; violation of the UCMJ, Article 107: Made an official statement which was false to the messenger of the watch to wit: "FN D_ is my escort."
	Award: 30 days restriction to the limits of USS SAMUEL GOMPERS (AD 37), reduction to E-1.  No indication of appeal in the record.

910504:	[USS SAMUEL GOMPES AD 37)] 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 all punishments under the UCMJ in current enlistment and misconduct due to commission of a serious offense as evidenced by nonjudicial punishment on 910413.

910505:	Applicant advised of rights and having elected 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 and the right to submit statements on own behalf, either verbally or in writing, before an administrative board, or in writing if an administrative board is not convened, and two working days to respond to the Notice of Administrative Board Procedure Proposed Action, also Applicant stated he object to this separation.

910507:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment and misconduct due to commission of a serious offense as evidenced by nonjudicial punishment on 910413.

910517:	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 19910611 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).

The Applicant did not introduce any decisional issues for the Board’s consideration.  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 separate occasions thus substantiating the misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a general (under honorable) characterization of service.  An upgrade would be inappropriate.  Relief denied.  

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 relief, 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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.
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