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Docket No. ND04-00026

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

ex-SR, USN
Docket No. ND04-00026

Applicant’s Request

The application for discharge review was received on 20031001.  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 20040712.  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 stated

Applicant’s issues, as stated on the application:

1.  “I would respectfully request my O.T.H. discharge upgraded to Honorable”

Documentation

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

Enlisted Performance Evaluation Report for February 1, 1990 to January 31, 1991 with 2 page attachment
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890208 - 890216	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890217		Date of Discharge:  920804

Length of Service (years, months, days):

	Active:    03  05  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  22

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.35 (4)		OTA:  3.40

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/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890914:	NJP for violation of UCMJ, Article 92: Drinking alcoholic beverages under the age of 21 on 890715.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days.  Restriction and extra duty for 15 days suspended for 6 months.  No indication of appeal in the record.

911012:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 121:
	Specification: Larceny on 910825.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $563.00, restriction for 40 days, reduced to SA.
	CA action 911027: Sentence approved and ordered executed.

911206:	NJP for violation of UCMJ, Article 91: Disrespectful in language to a petty officer, violation of UCMJ, Article 92: Failed to obey a lawful order.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

911208:	Retention Warning from USS KITTY HAWK (CV 63:  Advised of deficiency (Underage drinking, drinking while in duty status, larceny, disrespectful in language and failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
920521:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 128:
	Specification: Assault upon another on 920510.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Drunk and disorderly on 920510.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $393.00, restriction for 60 days, reduced to SR.
	CA action 920522: Sentence approved and ordered executed.

920521:	USS KITTY HAWK (CV 63) 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 enlisted service record.

920521:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920522:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

920624:	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 19920804 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 available 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 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 award of nonjudicial punishment (NJP) on two occasions, and a summary court-martial, which included violations of the UCMJ that are considered serious offenses.  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 is inappropriate.  Relief denied.

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 or any other evidence relating 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, effective 15 Aug 91 until 
04 Mar 93), 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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