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Docket No. ND03-00698

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

 ex-MMFA, USN
Docket No. ND03-00698

Applicant’s Request

The application for discharge review was received on 20030313.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040212.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Naval officer typed up a report of grievance complaint urged from commanding officer of duty station, compiled with written instructions of general regulations to be followed-up in court proceedings given from executive officer of duty station; (USS GUAM LPH- 9) based in Norfolk VA. I never submitted my grievance complaint to any civil lawyer. I was informed I had a case according to this particular naval class petty officer specialist but I never took it upon myself to take action.
I feel my naval discharge was inequitable based on this particular incident. The commanding officer of my ship asked me through my chief officer for a choice to receive my under other than honorable discharge in which I previously accepted.
If not for this particular incident I possibly would have considered choosing to stay longer in the service on active duty. In closing and addition I will leave an attached copy of my legal grievance complaint. I request the (NDRB) will consider this grievance complaint within my military personnel file report. Hopefully this issue will present itself.

Sincerely,

J_ E_ W_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Applicant’s statement
Chapter 11 General Regulations, Section 5. Rights and Restrictions
Poster – Navy procedures for the process of discrimination complaints/grievances for military personnel
Character reference, dated February 13, 2003
Character reference, dated February 18, 2003
Character reference, dated October 3, 1996
Character reference, dated January 27, 1996
Character reference, dated March 4, 2003
Character reference, dated March 2, 2003
Character reference, dated February 28, 2003
Standard Form 180
Leave and Earning Statement for 1-31 May 1991
Leave and Earning Statement for 1-31 December 1992

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901204 - 901225	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901226		Date of Discharge:  930713

Length of Service (years, months, days):

	Active:    02  06  18
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.13 (3)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920430:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward superior Petty Officer, violation of UCMJ, Article 134: Wrongfully communicate a threat.
	Award: Forfeiture of $200 per month for 1 month, restriction for 10 days.  No indication of appeal in the record.

930304:	NJP for violation of UCMJ, Article 92: Failure to obey an order on 930222.
	Award: Forfeiture of $500.55 per month for 1 month, reduction to MMFA.  No indication of appeal in the record.

930304:	Retention Warning from USS GUAM: Advised of deficiency (Failure to obey an order of a chief petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930604:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700-1400, 930517, violation of UCMJ, Article 87: Missing ship’s movement, violation of UCMJ, Article 92: Dereliction of duty.
	Award: Forfeiture of $407.40 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFR.  No indication of appeal in the record.

930609:	USS GUAM (LPH 9) 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 commission of a serious offense as evidenced by nonjudicial punishment.

930609:	Applicant advised of 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.

930616:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense.

930701:	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 19930713 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 the discharge was inequitable.  After reviewing the Applicant's entire service record, as well as the documents submitted by the Applicant, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharge given others in similar circumstances.  The Applicant’s service record was marred by award of three non-judicial punishments for wrongfully communicating a threat, failure to obey a lawful order, missing ship’s movement and dereliction of duty.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.  

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

The following is provided for the edification 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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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, 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.
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