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Docket No. ND04-00392

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

ex-STGSR, USN
Docket No. ND04-00392

Applicant’s Request

The application for discharge review was received on 20040105.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review.  The Applicant listed the American Legion 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 hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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:

“Issue 1.  MILPERSMAN 3610300 (3) (c) (2) sets forth guidelines and conduct which warrents an other than honorable discharge.  My conduct does not fit those items listed in MILPERSMAN section above.

Issue 2.  I served 4 of 5 very solid years benefiting both the Navy and me.  My conduct was isolated over a period of several months, and my discharge does not account for the 4 years of exceptional service I provided.

Issue 3.  The conditions that I spent my last year of service were unwarranted and contributed to my outwardly behavior.

Please see additional attachments for outline and presentation of issues.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“4.  Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.45 OTA and earned the NDSM, SASM (2), SSDR, MUC, JMUC.  He was awarded NJP on 920413 for VUCMJ, Art. 107; NJP on 920713 for VUCMJ, Art. 86, 92 (2 specs) and NJP on 930309 for VUCMJ, Art. 86 (2 specs), 91.  His due process included and ADB which found that he committed a pattern of misconduct and recommended separation UOTHC.  A letter of deficiency was filed by his Counsel on 930504.  His CO and BUPERS concurred the ADB findings and he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his UOTHC discharge is too harsh in accordance with Navy regulations and in light of his generally positive overall service record.  He has provided a detailed 16 page statement in elaboration of his issues and submitted copies of his service records, college degrees and 6 reference letters attesting to his good character, hard work and educational accomplishments for consideration.”

Documentation

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

Letter of Deficiency for Administrative Discharge
Character Reference From Dr. S_ E_-T_, Ph.D. P.E.
Evaluation dated September 13, 1988 to January 6, 1989
Evaluation dated January 6, 1989 to May 2, 1989
Evaluation dated July 1, 1989 to June 30, 1990
Evaluation dated July 1, 1990 to December 14, 1990
Evaluation dated December 15, 1990 to June 30, 1991
Evaluation dated July 1, 1991 to June 30, 1992
Copy of Separation Request Chit
Unclassified Radio Message
Character Witness Statement From STG2 K_
Character Witness Statement From STG1 G_
Character Witness Statement From FC2 J_
Character Witness Statement From FC1 B_
Character Witness Statement From GMM1 (SW) T_
Character Witness Statement From GMM2 B_
Leave and Earnings Statements
Character Reference From Professor B_ J_
Character Reference From Professor L_ B_
Character Reference From Dr. L_ V_, PhD
Character Reference From Dr. J_ R, PhD
Diploma Seminole Community College
Diploma University of Central Florida
Letter From Employer
Letter From Congressman J_ M_
Letter to and from Commanding Officer
Letter of Commendation
Letter of Commendation
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880624 - 880705	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880706		Date of Discharge:  930521

Length of Service (years, months, days):

	Active:    04  09  16
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  82

Highest Rate:  STG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (4)	Behavior:  3.2 (4)		OTA:  3.5

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR, MUC, JMUC  

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:

920203	Counseling:  referred by CAAC to outpatient alcohol treatment.

920213	Retention Warning from USS CONNOLY:  Advised of deficiency (termination from outpatient treatment program due to lack of participation and being dysfunctional with other program participants) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920413:	NJP for violation of UCMJ, Article 107:  False official statement.
	Award: Reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

920613:	NJP for violation of UCMJ, Article 86:  Absent from unit, violation of UCMJ, Article 92 (2 specs): Failure to obey order and dereliction in performance of duties.
	Award: Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

920723:	Retention Warning from USS CONNOLY:  Advised of deficiency (CO’s    NJP’s of 920413 and 920613) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930309:	NJP for violation of UCMJ, Article 86 (2 specs):  Absent from place of duty, violation of UCMJ, Article 91: Insubordinate conduct toward a Petty Officer, violation of UCMJ, Article 92: Failure to obey a lawful order.
Award: Forfeiture of one half pay for 2 months, restriction and confined to bread and water for 3 days, reduction to E-1.  No indication of appeal in the record.

930312:	[USS CONNOLY] 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 violations of the UCMJ.

930323:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930428:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930429:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): STGSR Ray was afforded ample opportunity to correct his deficiencies and improve his performance.  Regrettably, he failed to do so.  I agree with the findings of the Administrative Board and endorse an Other Than Honorable separation from the naval service.  

930519:	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 19930521 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 1-3:  The Applicant states “my conduct was isolated over a period of several months, and my discharge does not account for the 4 years of exceptional service I provided.”  The Board determined that the Applicant’s previous performance does not mitigate his misconduct that is the basis for his discharge.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three separate occasions for violating UCMJ, Articles 86, 91, 92 and 107 thus substantiating the misconduct.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.    

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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 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.