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Docket No. ND04-00502

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

ex-CTISN, USN
Docket No. ND04-00502

Applicant’s Request

The application for discharge review was received on 20040204.  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 20041001.  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 HONORABLE CONDITIONS (GENERAL)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Upon separation, I was told that if I could stay out of legal trouble for 6 months, I could request an upgrade of my discharge characterization.  It has now been over 5 years, and I have not even been arrested once.  I am requesting this upgrade so that I may receive my G.I. Bill benefits.  I am currently enrolled in school, and am working hard to better myself.  I am maintaining a 4.0 GPA, and would like to graduate.
    To give some background on my discharge, I just want to notify the Board of my situation at that time.  Before I was discharged, I was a member of the U.S. Navy, and had recently received my first award for good conduct.  This shows that I was a respectable member, in good standing, of the U.S. Navy.  Shortly thereafter, things began to go badly.  I had been married, but in February of 1997, my wife and I split up.  In December of 1997, we signed legal separation papers.  However, my estranged wife, during the time we were apart, had given birth to a baby girl.  I had requested DNA testing, and my wife disappeared.  So, I was forced to accept the baby as my own, and put her on my military health insurance.
    Since I could no longer have a DNA test, I signed away my parental rights in lieu of paying child support.  This is when my wife’s mother became heavily involved.  She started to call my CO and/or XO every day, Monday through Friday.  They, in turn, told me to call her, and resolve the situation.  I tried to do this, several times, with poor results.  Most of the calls would end with my mother in-law hanging up on me, only to find out the next day that she had called my CO and/or XO yet again.
    Needless to say, my life became very stressful, which led to me not being able to sleep at night.  It got to be where I would finally fall asleep in the early morning, and then I would sleep through my alarm.  It became a regular pattern for to be late getting to work, which led to several write-ups for U/A.  Eventually, due to this, I was sent to Captain’s Mast, where it was determined that I was to be discharged from the Navy.  My career, which had started with such promise, had come to an end.
    Since then, I have kept my nose clean, and I am going back to school to better myself.  I am now the proud father of a 2 ½ year old son, and I want him to have a good life.
    I feel that this board should upgrade my discharge, so that I can complete my education.  Without the money from the G.I. Bill, I will have to quit school, and my son will suffer the most.
    I have led a crime-free, respectable life, and I ask that this board consider this.  Please, upgrade my discharge to honorable, so that I can do right by myself, and my son.”

Documentation

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

Copy of DD Form 214
Extract of legal agreement (2 pp.)
Awards page from service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950126 - 950222	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950223		Date of Discharge:  980731

Length of Service (years, months, days):

	Active:    03  05  08
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  98

Highest Rate:  CTI3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.71

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

950424:	Retention Warning:  Advised of deficiency (two parking tickets), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980309:	Retention Warning:  Advised of deficiency (failure to provide support for your family member), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980615:	Retention Warning:  Advised of deficiency (failure to be your appointed place of duty on 980501, 980605, 980612 and financial irresponsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980625:	NJP for violation of UCMJ, Article 86: UA from 0730-1237, 980615.
	Award:  Reduction to CTISN.  No indication of appeal in the record.

980708:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

980708:	Applicant advised of rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

980821:	Commanding Officer recommended discharge by reason of misconduct due to a pattern of misconduct.  

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980731 under honorable conditions (general) for misconduct due to a pattern of misconduct (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  A characterization of service of under honorable conditions (general) 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 one occasion and adverse counseling entries on other occasions.  While he may feel that his marital problem at the time was a factor 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 Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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.