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Docket No. ND04-00504

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

ex-ADAR, USN
Docket No. ND04-00504

Applicant’s Request

The application for discharge review was received on 20040203.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

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: GENERAL (UNDER HONORABLE CONDITIONS)/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.  “Due to the fact that I was an Honorable Sailor.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from October 1, 1996 to November 24, 1998 at which time he was discharged due to Misconduct. 

The FSM requests equitable relief in the form of a discharge upgrade due to the fact that he was an Honorable Sailor.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C. 

Additionally, a review of the case for any improprieties, an impropriety will be held to exist when there is an error of fact, law, procedures, or discretion associated with the discharge at the time of issuance; and that the rights of the Applicant were prejudiced thereby ( such error shall [and does] constitute prejudicial error, as we believe there is doubt that the discharge would have remained the same if the error had not been made, to include any changes in Navy policy made expressly retroactive to this type of discharge under consideration. See, 32 CFR 724.902.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

                                                       Respectfully,”

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)	951025 - 961002	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  961003		Date of Discharge:  981124

Length of Service (years, months, days):

	Active:    02  01  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  55

Highest Rate:  ADAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM

Days of Unauthorized Absence:  None

* No marks available for review

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

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

Chronological Listing of Significant Service Events:

980628:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

980629:	Retention Warning:  Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Date extracted from Commanding Officer’s letter dated 981011.]

980804:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go to appointed place of duty on 0630, 980702, to wit: restricted muster, (2) Fail to go to appointed place of duty on 0630, 980712, to wit: restricted muster.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

980928:	NJP for violation of UCMJ, Article 92: Dereliction of duty.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 981011.]

981007:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

981007:	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 

981011:	Commanding Officer recommended discharge general (under 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 19981123 with a general (under 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.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General (Under 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 award of nonjudicial punishment (NJP) on three occasions for violations of Articles 86 and 92 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 denied.

Issue 2.  To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  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.