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Docket No. ND04-00453

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

ex-ABHAR, USN
Docket No. ND04-00453

Applicant’s Request

The application for discharge review was received on 20040128.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040910.  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.  “This letter is an attempt to shed light on past occurrences that has an affect on my present and future endeavors.  During my enlistment I had the opportunity to serve our Nation as A United States Sailor.  Briefly after commencing duty at my first command my life took a drastic shift, one, which at the time was not acknowledged nor confronted on my part.  The event I am referencing is the demise of my grandmother.  The shock of loosing a dear love one combined with other family dilemmas, and adverse shipboard life was a burden that I had no preparation for mentally.  As a new service member without a full grasp on maturity, I allowed tragedy to affect my overall personal and occupational performance.  Several years following personal private counseling sessions I came to the realization that consulting the command chaplain may have deterred behavior which lead to an other than honorable discharge.  Currently as a volunteer youth counselor of the Atlanta YMCA, I’ve been privileged to have a positive affect in the lives of our youth of low social and economical background.  I am writing you asking for a reversal in my other than honorable discharge.  Any positive consideration will be greatly appreciated.”

Documentation

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

Copy of DD Form 214
Character reference

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920729 - 930712	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930713		Date of Discharge:  951215

Length of Service (years, months, days):

	Active:    02  05  03  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  ABHAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  3

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:

940622:	NJP for violation of UCMJ, Article 86 (4 Specs.). Specification 1: Going from aft galley scullery on 940520; Specification 2: UA, 0810-1255, 940607; Specification 3: Going from aft galley scullery on 940612; Specification 4: UA, 0810-1000, 940531.  Violation of UCMJ, Article 91 (3 Specs.).  Specification 1: Contempt to a PO1 on 940520; Specification 2: Contempt to a PO1 on 940528; Specification 3: Willfully disobey a PO3 on 940607.  Violation of UCMJ, Article 92: dereliction of duty, to wit: failed to remain at his station.  Violation of UCMJ, Article 134: disorderly conduct on 940528.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

940622:	Retention Warning from USS Theodore Roosevelt.  Advised of deficiency (going from appointed place of duty, dereliction of duty, unauthorized absence, willful disobedience and contempt to a PO), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941103:	NJP for violation of UCMJ, Article 92: Violated uniform restriction orders on 940906 and 941001; violation of UCMJ, Article 134: Possession of a false ID sticker.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

941130:	NJP for violation of UCMJ, Article 91: Disobeyed a PO by not field daying the passageway.
Award: Forfeiture of $300 for 2 months, confinement on bread and water for 3 days, and reduction to ABHAR.  No indication of appeal in the record.

941214:	NJP for violation of UCMJ, Article 86: UA from Hangar Bay 2, violation of UCMJ, Article 91 (2 Specs.).  Specification 1:  Disobeyed a PO by not carrying a chain in one hand and a chock in the other; Specification 2:  Walked away from a PO when called upon.
Award: Forfeiture of one-half month’s pay and confinement on bread and water for 3 days.  No indication of appeal in the record.

950303:	Special Court-Martial.
		Charge I.  Violation of UCMJ, Article 86: UA on 941111.
		Charge II.  Violation of UCMJ, Article 92: Failed to maintain proper 
watch.
Charge III. Violation of UCMJ, Article 107: Signing a false entry in a station watch log.
Findings: Guilty to all charges and specifications.
Sentence: Confinement for 3 months.

950522:	 CO, TPU, Norfolk notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense as evidenced by the service record.

950609:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950721:	UA commenced at 1300.

950724:	From UA, to duty.

950821:	UA commenced at 1300.

950822:	From UA, to duty.

951017:	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 and due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

951106:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense.

951120:	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 19951215 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.  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 four occasions and one special court-martial.  While he may feel that his immaturity and family dilemmas were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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 continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 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.