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Docket No. ND04-00431

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

ex-MSSA, USNR
Docket No. ND04-00431

Applicant’s Request

The application for discharge review was received on 20040121.  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 20040922.  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 1910-140 (formerly 3630600).

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I believe my discharge from the Navy was not justified because of the use of a Navy issued Blue Utility coat, that was used in my work space.  I did have the coat in my posession, but after being confronted by BM2 A_, who said the coat belonged to Deck Division, I left the coat on my rack and left Mayport, Fl. and road to Pasegoula, MS with Fellow Shipmates: RM2 M_, SM1 W_, Seaman H_, OS1 W_, STG1 T_ who I arrived back in Mayport, Fl with only to find out that I was written up for the Coat.  I knew if I had to see the captain again my career was over.  I could not find the coat, which I offered to replace, but power at be didn’t even consider it.  I have faced all my military problems head on even as I’m no longer apart of the Navy Tradition.  I am Trusty and Honorable.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  941118		Date of Discharge:  980710

Length of Service (years, months, days):

	Active:    02  11  09
	Inactive:  00  08  14

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  32

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  2.33 (3)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  34

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

950803	Applicant ordered to active duty for 36 months.

951103:	Retention Warning:  Advised of deficiency (Failure to disclose citation for following to close, 7-95, Memphis, TN.  Payment plan for fine has been implemented to begin 11-3-95 and end 12-1-95.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960310:	Applicant to unauthorized absence 0600, 960310.

960313:	Applicant missed movement.

960414:	Applicant from unauthorized absence 1745, 960414 (33 days/surrendered).

960415:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
	Award: Correctional custody unit for 30 days.  No indication of appeal in the record.

970222:	NJP for violation of UCMJ, Article 134: Altering military identification card, violation of UCMJ, Article 123: Forgery.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

970222:	Retention Warning: Advised of deficiency (False or unauthorized pass offense.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970920:	Applicant to unauthorized absence 0500, 970920.

970921:	Applicant from unauthorized absence 0900, 970921 (1 day/surrendered).

971017:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Underage consumption of alcohol.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

971017:	Retention Warning: Advised of deficiency (Absence without leave, failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980323:	NJP for violation of UCMJ, Article 121 (2 specs): 1 Steal a cold weather jacket, military property of a value of $118.50, the property of SN C_ R_ on 980313, 2 Wrongfully appropriate a cold weather jacket, military property, of a value of $118.50, the property of BM3 J_ Q_ on 980316.  Spec 1 dismissed.
	Award: Restriction and extra duty for 14 days.  No indication of appeal in the record.

980324:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980325:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980423:	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.

980430:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980615:	Commander, Western Hemisphere Group 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 19980710 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.  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 nonjudicial punishment proceedings for seven violations of Articles 86, 87, 92, 121, 123, and 134 of the UCMJ.  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.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety 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.  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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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.