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Docket No. ND03-00226

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

ex-EMFN, USNR
Docket No. ND03-00226

Applicant’s Request

The application for discharge review, received 021121, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030512.  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 at the time of issue.  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.  This former member 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 Applicant’s business card
Letter of recommendation dated May 2, 2002
Letter of recommendation dated May 6, 2002
Performance evaluation
Certificate of Completion dated March 26, 1999
Certificate of Completion dated December 16, 1999
Editor’s Choice Award certificate
Résumé (2 pages)
Work history (4 pages)
Registration eligibility from Georgia Perimeter College
Bell South Educational Assistance Program Application

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891212 - 900722 	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900723		Date of Discharge:  930323

Length of Service (years, months, days):

	Active:    02  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  65

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.10 (2)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM (W/*)

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:

900723:	Commenced four years Active Duty in the TAR Program.  Assigned Recruit Training at RTC, NTC, Great Lakes, IL.

910429:	Joined USS KIRK (FF-1087) Long Beach, CA.

910524:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (leaving place of duty and unshaven), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910711:	NJP for violation of UCMJ, Article 95: Resistance, breach of arrest.
	Award:  Reduction to E-1 (suspended for 2 months), and an oral admonition.  No indication of appeal in the record.

911011:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (False statement to LPO, UA, and refusing to surrender ID Card), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911016:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (UA from duty section muster), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911022:	NJP for violation of UCMJ, Article 86: UA on 911010; violation of UCMJ, Article 91: Disobeying a lawful order on 911010; violation of UCMJ, Article 92: Dereliction of duty on 911010.
	Award:  Restriction and extra duty for 20 days.  No indication of appeal in the record.

911029:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (Grooming standards (shaving)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911101:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (Insufficient performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911107:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (Personal grooming standards, and insufficient progress toward completing tasks in a timely and efficient manner), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920221:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order.
Award:  Restriction and extra duty for 10 days.  No indication of appeal in the record.

920222:	Retention Warning from [USS KIRK (FF-1087)]:  Advised of deficiency (3 NJP's), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920306:	Retention Warning from [USS KIRK (FF 1087)]:  Advised of deficiency (Substandard performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

921012:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties on 920925.
	Award:  Forfeiture of $482.00 pay per month for 2 months.  Appeal denied on 921210.

921021:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

921215:	USS KIRK (FF-1087) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

930122:	NJP for violation of UCMJ, Article 86: UA on 930111.
Award:  Restriction for 30 days.  No indication of appeal in the record.

930201:	Applicant advised of rights and having consulted 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.

930203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

930319:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950911:	NDRB documentary record review Docket Number ND95-01395 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930323 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 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.  While the Board found elements of the Applicant’s post service conduct to be commendable, the Board determined that the Applicant’s evidence of post-service conduct does not mitigate the offenses for which he was discharged under other than honorable conditons.  Relief not warranted.

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 “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:  A6710/A9221/A9217/