Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00158

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

ex-SR, USNR
Docket No. ND04-00158

Applicant’s Request

The application for discharge review was received on 20031029.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040720.  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.  “The discharge was unfair.  It wasn’t taken into account that I was dealing with the Deaths of two people that were very close to me.  Instead of getting me counseling to help me through the situation, I was punished to point where I didn’t want to be apart of it anymore.  Its been 10 yrs and the only blemish I have on my record, since is this one.  I’ve been a very productive part of society for the last 10 yrs and grown alot as a man.  I’m not asking for a Honorable discharge but a General Discharge/under honorable conditions because the issues that happened while I was in the Military doesn’t Reflect the person that I am. Up until the start of my troubles in the Military, I was a model Soldier.  I was a section leader in bootcamp and a RPOC in ATD.  I loved being in the Military and never shyed away from my duties.  At the time of my troubles, I was told to ship up or ship out.  That’s when I asked to be discharged, so I can be with my family.  I was young, going through problems and felt that was the right thing to do which was, to be with my family.  I wasn’t in any kind of trouble until that point and like I stated earlier I’m not asking for a Honorable discharge.  Just a General under Honorable Conditions discharge.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: 	USNR (DEP)		930522 - 940213	COG
	Active:   	None

Period of Service Under Review:

Date of Enlistment:  940214		Date of Discharge:  950217

Length of Service (years, months, days):

	Active:    01  00  04
	Inactive:  00  00  00

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  53

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.20 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER

Days of Unauthorized Absence:  4

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:

940704:	Applicant to unauthorized absence 0745.

940708:	Applicant from unauthorized absence 0629 (3 days/surrendered).

940726:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0600, 940718 to 0700, 940719 (1 day/surrendered), violation of UCMJ, Article 92: Failure to obey a lawful order on 940715, to wit: to do extra military instruction (2 hours for 12 days).
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

940817:	NJP for violation of UCMJ, Article 134: Breach of correctional custody on 0900, 940812..
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

941208:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a chief petty officer, violation of UCMJ, Article 92: Failure to obey other lawful orders.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

941208:	Retention Warning from USS SHREVEPORT (LPD 12):  Advised of deficiency (Your violation of the Uniform Code of Military Justice Articles 91 and 92 as evidenced by your most recent NJP.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950114:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

950119:	USS SHREVEPORT (LPD 12) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950119:	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.

950124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950217:	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 19950217 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 contends that his discharge was unfair and that he was a “model soldier.”  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable or under honorable conditons.  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 four nonjudicial punishment proceedings for six violations of the UCMJ to include violations of Articles 86, 91, 92 and 134.  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 Applicant contends that his problems in the Navy can be attributed to his "dealing with the deaths of two people that were very close to me."  While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any other evidence related 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 9, effective 
22 Jul 94 until 02 Oct 96), 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.