Author: CAP
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Docket No. ND04-00992

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

ex-AA, USN
Docket No. ND04-00992

Applicant’s Request

The application for discharge review was received on 20040601.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Brooklyn, NY.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, and that all hearings are held in the Washington National Capital Region. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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

No issues were submitted by the Applicant.

Documentation

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

Copies of High School Equivalency Diploma (2)
Copies of College Admittance Letter dated May 5, 2004 (2)
Applicant’s DD Form 214
Copy of Financial Aid Award Notification Letter dated June 3, 2004
Copy of Check from United States Treasury

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990521 - 990527	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  990528		Date of Discharge:  000419

Length of Service (years, months, days):

	Active:    00  10  23  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  8

*No Marks made available for review 

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:

991223:	UA from USS JOHN C STENNIS (CVN-74) at NAS North Island, San Diego, CA.

991224:	Surrendered on board USS JOHN C STENNIS (CVN-74).

991227:	UA from USS JOHN C STENNIS (CVN-74) at NAS North Island, San Diego, CA.

991231:	Surrendered on board USS JOHN C STENNIS (CVN-74).

000120:	NJP for violation of UCMJ, Article 86: Unauthorized absence for 8 days.
	Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 21 days (5 days restriction and extra duty suspended for 6 months).  No indication of appeal in the record.

000120:	Retention Warning:  Advised of deficiency (CO’s NJP on 000120 for violation of the UCMJ, Article 86, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000204:	NJP for violation of UCMJ, Article 86 (4 Specifications): Unauthorized absence; violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Restriction and extra duty for 10 days (5 days restriction and extra duty suspended for 6 months).  No indication of appeal in the record.

000315:	NJP for violation of UCMJ, Article 86 (5 Specifications): Unauthorized absence, violation of UCMJ, Article 92 (4 Specifications): Failure to obey a lawful order.
Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days (5 days restriction and extra duty suspended for 6 months).  No indication of appeal in the record.

000317:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three non-judicial punishments during current enlistment and misconduct due to commission of a serious offense as evidenced by non-judicial punishment dated 000204 for Article 92, failure to obey a lawful order and 000315 for Article 92 (4 Specifications), failure to obey a lawful order.

000317:	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.

000323:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three non-judicial punishments during current enlistment and misconduct due to commission of a serious offense as evidenced by non-judicial punishment dated 000204 for Article 92, failure to obey a lawful order and 000315 for Article 92 (4 Specifications), failure to obey a lawful order.

000324:	COMCARGRU SEVEN 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 20000419 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).

The Applicant introduced no decisional issues for consideration by the Board.  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 three occasions for unauthorized absences and disobedience of lawful orders.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service.  An upgrade is inappropriate.  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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.