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Docket No. ND04-01244

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

ex-FR, USN
Docket No. ND04-01244

Applicant’s Request

The application for discharge review was received on 20040806.  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 submission of DD Form 293, the Applicant obtained representation from Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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/Misconduct - 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.  “I am requesting that the Board conduct a review of my discharge based on my personnel records and change my discharge to honorable.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “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 of evidence assembled for review, we continue to note the contention of the appellants petitioner and their request for a discharge upgrade of the Other Than Honorable (OTH) Conditions discharge to that of Honorable.

The FSM served on active service from June 24, 1991 to April 21, 1993 at which time he was discharged due to Misconduct – Pattern of Misconduct. 

It is the contention of the petitioning family member and / or request that relief be granted based on equity. That in January 2003 the FSM suffered a traumatic brain injury as a result of a motor vehicle accident and is unable to petition on his own. 

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.

The family maintains that at the time of the accident the FSM was a participating member of the Naval Reserves, honorably serving his country and now needs his country to serve / assist him. If a determination is made that will upgrade the current discharge to that of honorable the FSM would be able to seek rehabilitative services through the Department of Veterans Affairs for the residuals of the brain injury at a lower cost to his family, thereby providing equitable relief.

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.”

Documentation

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

Ltr frm Applicant’s parents dtd 040731
Notary certification dtd 040723
Cruise book page photocopies (2)
Discharge form, University Hospitals dtd 030226
Dept. of Education Loan Discharge Application dtd 030825
Ltr frm Applicant’s parents, undated
Petition for Appointment of Conservator dtd 030826
Ltr frm NC1 J_ F_ dtd 040522
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910419 - 910623	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910624		Date of Discharge:  930421

Length of Service (years, months, days):

	Active:    01  09  29		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (2)		Behavior:  3.20 (2)		OTA:  3.20

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/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920410:	Retention Warning from [AFDM-14]:  Advised of deficiency (Disrespect toward a petty officer, disobeying a lawful order and provoking speech and gestures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920418:	NJP for violation of UCMJ, Article 92 (2 Specs):  
Spec 1:  Disrespectful to MM2 S_ by saying “F_ off and you are a sissy” or words to that effect. 
Spec 2:  Failure to follow a lawful order.
Article 117 (2 Specs):
Spec 1:  Wrongfully use reproachable language, to wit “F_ off.”
Spec 2:  Used provoking gestures by using his elbow to try to push MM2 S_ off the aft brow ladder.
Award: Forfeiture of $376.00 per month for 2 month(s), correctional custody for 30 days.  No indication of appeal in the record.

921217:	NJP for violation of UCMJ, Article 86:  UA 0700, 921114 to 0700 921124.
	Award: Forfeiture of $392.00 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-1, RIR susp 6 mos.  No indication of appeal in the record.

930112:	Retention Warning from [AFDM-14]:  Advised of deficiency (UA 921114 - 921124), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930319:	Susp award of 921217 vacated.

930324:	NJP for violation of UCMJ, Article 86:  UA 930305 to 930315.
	Award: Forfeiture of $407.00 per month for 2 month(s), extra duty for 45 days and oral reprimand.  No indication of appeal in the record.

930329:	[USS STEADFAST, AFDM-14] notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your three nonjudicial punishments.

930929:	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.

930330:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

930409:	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 19930421 under other than honorable conditions for misconduct due to a pattern of misconduct (A & B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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.  The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86, 92 and 117 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 is not warranted.

Issue 2.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Additionally, The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  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 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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, failure to obey and order, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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.