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Docket No. ND03-00842

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

ex-SR, USN
Docket No. ND03-00842

Applicant’s Request

The application for discharge review was received on 20030407.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before a traveling panel.  The Applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearings, and also advised that the Board does not travel, all hearings are held in the Washington D.C. area.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  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.  “I requested that this application for the review discharge or dismissal from the armed services of the united states be changed to general/under honorable conditions for the following reasons: (1) Dismissal of civil charges against myself concerning a stolen vehicle in the state of w/Virginia in 1993.  (2) Charges of a physical altercation reduced to confinement on ship for 2wks. (3) An AWOL charge led to the issurance of a discharge under less than honorable conditions.  I feel that this action was unwarranted because the AWOL charge was less than 30 days, and during this period of Time, I was experiencing bouts of depression caused by personal conflicts that were occurring.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “We concur with the Applicant’s contentions that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his other than honorable discharge to general discharge.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900406 - 900903	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  900904		Date of Discharge:  940411

Length of Service (years, months, days):

	Active:    03  03  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  29

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (3)	Behavior:  2.60 (3)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, NAVY”E”, SSDR, SASM

Days of Unauthorized Absence:  101

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:

900905:	You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  This decision is based on the information you provided to the RECRUIT QUALITY ASSURANCE INTERVIEWER and if found not factual, this waiver is void and you can be subject to other judicial or administrative proceedings.
	
Petty Larceny, 4/85, Godfrey, IL, 1 month probation.

900910:	Retention Warning from [RTC, NTC, Great Lakes, IL]:  Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning

930812:	Retention Warning from [USS DWIGHT D. EISENHOWER (CVN-69)]:  Advised of deficiency (Violation of UCMJ, Article 107, on or about 930623, alter official document, violation of UCMJ, Article 134, on or about 930601, disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning

930812:	NJP for violation of UCMJ, Article 107: On or about 930627, alter an official document, violation of UCMJ, Article 134: On or about 930601 disorderly conduct.
Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

930831:	Civil Conviction:  Greenbrier County, West Virginia for (1) Possession of stolen property, (2) Reckless driving.
	Sentence: Charge (1) Dismissed, Charge (2) Fined $200.00 and 72 days in jail. 

931122:	NJP for violation of UCMJ, Article 86: UA from unit 930215 to 930429 (73days/R).
Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

940203:	NJP for violation of UCMJ, Article 86: UA from unit 931202 to 921230 (28 days), violation of UCMJ, Article 87: (2 specifications) missed movement, violation of UCMJ, Article 92: Willfully fail to obey a lawful written order by drinking alcohol while on restriction on 931201, violation of UCMJ, Article 134: Broke said restriction on 931201.
	Award: Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

940213:	USS DWIGHT D EISENHOWER (CVN-69) 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 your non-judicial punishment of 940213, 931122 and 930812; by reason of misconduct due to commission of a serious offense as evidenced by your non-judicial punishment of 940203 for violation of the UCMJ, Article 87, two specifications, missing ship’s movement and violation of the UCMJ, Article 92, failure to obey a lawful written order; your non-judicial punishment of 931122 for violation of the UCMJ, Article 86, unauthorized absence from 930215 to 930429, and your non-judicial punishment on 930812 for violation of the UCMJ, Article 107, altering an official document; and by reason of misconduct due to civil conviction as evidenced by your civil conviction on 930831 in Greenbrier County, West Virginia for reckless.

940213:	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.

940221:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, by reason of misconduct due to commission of a serious offense and misconduct due to civil conviction.

940329:	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 19940411 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).

Issues 1 and 2:  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by three non-judicial punishments (NJP’s), and three retention warnings.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 documentation to support any claims of post-service accomplishments or any other evidence pertaining to his discharge 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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