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Docket No. ND05-00772

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

 ex-SR, USN
Docket No. ND05-00772

Applicant’s Request

The application for discharge review was received on 20050328.  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.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050812.  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:

“Better opportunities in life.  I was very immature & made some bad decisions while in the Navy.  I am now a different person.  Please see attached letters.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Reference of character from R_ G_, dated January 10, 2005
Reference of character from M_ F_, dated December 22, 2004
Reference of character from R_ W_, Adjunct Professor, Southern University, dated January 10, 2005
Diploma in Bachelor of Arts in History, Wiley College, dated May 5, 1997

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890531 - 890814	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890815		Date of Discharge:  910412

Length of Service (years, months, days):

	Active:    01  07  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (1)		Behavior:  3.0 (1)		OTA:  3.0

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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:

890818:	Retention Warning:  Advised of deficiency (non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and administrative discharge under other than honorable conditions.

901129:	NJP for violation of UCMJ, Article 86:  On or about 0730, 23NOV90, without authority, absent himself from his unit; violation of UCMJ, Article 92:  On or about 23NOV90, disobeyed a lawful order.
	Award: Forfeiture of $200.00 pay per month for 1 month, an oral admonition.  No indication of appeal in the record.

901203:	Retention Warning from USS Mount Hood (AE 29):  Advised of deficiency (Late to work, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910128:	NJP for violation of UCMJ, Article 113:  On or about 2253, 91JAN21, onboard USS MOUNT HOOD (AE-29), being on post as a lookout at fantail was found sleeping at his post.
Award:  Restriction and extra duty for 30 days, reduction to E-1 and oral admonition.  No indication of appeal in the record.

910206:	Retention Warning from USS Mount Hood (AE 29):  Advised of deficiency (Sleeping on watch in the vicinity of a war zone), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910307:	NJP for violation of UCMJ, Article 92 (2 specifications):
Specification 1:  On or about 1930, 19FEB91, was derelict in the performance of his duties, willfully failed to stand a proper gun mount watch.  
Specification 2:  On or about 2330, 22FEB91, was derelict in the performance of those duties, willfully failed to stand a proper mine watch.  Award:  Restriction and extra duty for 45 days, forfeiture of $350.00 per month for 2 months.  [EXTRACTED from USS MOUNT HOOD’s Msg 200241Z MAR 91]

910316:	USS MOUNT HOOD notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of four serious offenses.  [EXTRACTED from USS MOUNT HOOD’s Msg 200241Z MAR 91].

910316:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not elect to make a written statement.  [EXTRACTED from USS MOUNT HOOD’s Msg 200241Z MAR 91].

910320:	Commanding Officer, USS MOUNT HOOD, recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of four serious offenses as evidenced by Commanding Officer’s NJP’s 29 November 1990, 28 January 1991, and 07 March 1991.  Commanding Officer’s comments (verbatim):  SR L_ (Applicant) is recommended for separation by an Other Than Honorable Discharge.  He is completely without either the motivation or aptitude for military service.  Potential for reclamation is zero.

910326:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910412 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

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 retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 113 of the UCMJ.  Violations of Articles 92 and 113 are considered serious offenses.  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.

The Applicant contends that his problems in the Navy can be attributed to making some “bad decisions” and “immaturity.”  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB is authorized 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 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 post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief is not warranted.

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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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 an order or regulation or Article 113, misbehavior of a lookout, 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 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.

E.  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.

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.