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Docket No. ND04-00871

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

ex-AR, USN
Docket No. ND04-00871

Applicant’s Request

The application for discharge review was received on 20040507.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the 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 review was conducted in Washington, D.C. on 20041112.  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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “On June 11, 2002 I was discharged honorably for serving my full two year term on the USS Abraham Lincoln CVN-72.  I was discharged with all my medical & personal documents, along with my defense medal & my plaque & certificate of honorable discharge.  My DD-214 says OTH under misconduct.  I would like this changed to what it should say so I may rejoin.”

Documentation

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

Copy of DD Form 214
Copy of Applicant’s Social Security card and Arkansas state ID card

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	001115 - 010121	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  010122		Date of Discharge:  020611

Length of Service (years, months, days):

	Active:    01  04  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.17

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  20

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:

010720:	NJP for violation of UCMJ, Article 92 (2 specs):  orders violation, violation of UCMJ.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

010720:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment on 010720 for violation of UCMJ Article 92, orders violation (2 specs)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011207:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specifications 1 and 2:  Unauthorized absence from 010927 to 011003 and unauthorized absence from 011009 to 011023.
	Specifications 3 through 36:  Failure to go to appointed place of duty, restricted/pretrial personnel muster.
	Finding:  to Charge I and specifications 1 – 11, 14 – 23, 25 - 36 thereunder, guilty, to specifications 12, 13, and 24, not guilty.
	Charge II:  violation of the UCMJ, Article 87:
	Specification:  Miss ship’s movement through design on 011015.
	Finding:  to Charge II and the sole specification thereunder, guilty.
	Charge III:  violation of the UCMJ, Article 92:
	Specification:  Failure to obey a lawful order issued by the Commanding Officer on 011023.
	Finding:  to Charge III and the sole specification thereunder, guilty.
	Sentence: Forfeiture of $694.00 pay per month for 1 month, reduced to E-1, and 30 days confinement.
	CA action unknown.

020517:	NJP for violation of UCMJ, Article 86 (5 specs):  Unauthorized absence, violation of UCMJ, Article 92:  Failure to obey a lawful order.
Award:  Forfeiture of $578.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

020519:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense.

020519:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

020521:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

020611:	Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020611 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, 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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he served honorably and was awarded an honorable discharge upon the completion of his two year enlistment.  Contrary to his claims, the evidence of record indicates that the Applicant enlisted for a period of four years, that he only completed a little over one year and four months of his enlistment and that he was notified and processed for separation by reason of misconduct.  The record further indicates that the Applicant was awarded nonjudicial punishment on two separate occasions for five violations of the UCMJ, Article 86 and two violations of the UCMJ, Article 92.  Furthermore, the Applicant was convicted at summary court-martial for 33 violations of the UCMJ, Article 86, one violation of the UCMJ, Article 87, and one violation of the UCMJ, Article 92.  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.  Thus, as a result of his misconduct, the Applicant was properly notified of his impending separation with a least favorable characterization of under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of a serious offense.  The Applicant marked his initials indicating his understanding and waiver of the rights afforded to him.  The Applicant has submitted no evidence and the Board has not found any evidence in the record to substantiate the Applicant’s claim that he completed his enlistment and received an honorable discharge.  As such, 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 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.