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

FOR OFFICIAL USE ONLY

 ex-OSSN, USN
Docket No. ND05-01256

Applicant’s Request

The application for discharge review was received on 20050718.  The Applicant requested a record review and that his characterization of service be changed to honorable.  The Applicant designated a representative on the DD Form 293.   

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered.  However, an impropriety in the discharge process was discovered.  The Board’s vote was unanimous that the characterization of the discharge shall not change and that the reason for discharge shall change:  GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“FOR THE PAST TWO YEARS I HAVE BEEN STEADY WORKING AT THE SAME COMPANY.  I HAVEN’T BEEN IN ANY TROUBLE SINCE LEAVING.  THE REASON FOR MY REQUEST IS FOR A JOB OPERTUNITY HAS JUST OPEN UP FOR ME.  THE ONLY THING THAT IS HOLDING ME BACK IS MY ADMITTED DD 214 FORM.  I AM RESPECTFULLY REQUESTING A CHANGE OF MY DD 214 FORM TO HONORABLE.”

Documentation

The Applicant submitted the following documentation for consideration in addition to his service and medical record:

Applicant’s DD Form 214
Employment Reference letter from S_ K. G_, Branch Manager, Labor Ready, dated June 20, 2005

The Applicant’s representative submitted no issues.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980925 – 19990112		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990113		Date of Discharge:  20031118

Length of Service (years, months, days):

	Active:    04 10 06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (41 month extension)

Education Level:  12				AFQT:  39

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.6 (9) 		Behavior:  2.2 (10)		OTA:  2.39 (10) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon (2)

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

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

Chronological Listing of Significant Service Events: 

990812:	NJP for violations of the UCMJ, Article 91 (insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) and Article 86 (unauthorized absence).
	Award:  Forfeiture of $150 per month for 2 month, 14 days of restriction and extra duty.  No indication of appeal in the record.

990812:	Retention Warning:  Advised of deficiencies (VUCMJ, Article 91 and Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010719:	NJP for a violation of UCMJ, Article 113 (misbehavior of a sentinel or lookout).
	Award:  30 days restriction and extra duty, reduction to E-3.  No indication of appeal in the record.

010719:	Retention Warning:  Advised of deficiency (VUCMJ, Article 113), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020715:	Evaluation and counseling report, Block 43 Comments.  “Needs supervision and direction....must be prompted to prepare for scheduled events...unsatisfactory conduct...shows little motivation to perform.”

030612:	Evaluation and counseling report, Block 43 Comments.  “Constantly needs supervision to get to work on time, complete assigned tasking and make liberty curfew.” 

030919:	NJP for violations of the UCMJ, Article 86 (unauthorized absence) and Article 92 (failure to obey other lawful written order).
Award:  Forfeiture of $899 per month for 1 month, 30 days restriction and extra duty, reduction to E-3.  No indication of appeal in the record.

030919:	Retention Warning:  Advised of deficiency (VUCMJ, Article 86 and Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031013:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

031013:	Applicant advised of his rights elected not to consult with counsel.  However he elected the right to submit a written statement for consideration by separation authority, the right to obtain copies of the documents used to support the basis for the separation and the right to a General Court Martial Convening Authority (GCMCA) review.

031014:	Commanding Officer, USS CHANCELLORSVILLE (CG 62) recommended to Commander, Navy Personnel that OSSN S_ (Applicant) be discharged with a general (under honorable conditions) characterization of service by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “Despite counseling and warnings, OSSN S_ (Applicant) continues to commit misconduct as noted above.  OSSN S_ (Applicant) is either incapable, or simply unwilling, of adhering to the rules and regulations of this command and the U.S. Navy, and is simply unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that OSSN S_ be separated from the navel service by reason of misconduct due to a pattern of misconduct, and that he is characterization of service be General Under Honorable Conditions.”

031015:	Applicant transferred to TPU San Diego awaiting administrative discharge. 

031027:	COMNAVPERSCOM directed the retention of OSSN S_ (Applicant).  “MBR did not violate pg 13 counseling/warning entry.  This is legally binding the Navy.” 

031118:	Member discharged.  DD-214 issued, general (under honorable conditions), pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031118 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board discerned no inequity in the characterization of the Applicant’s service (B).  The Board found an impropriety in the discharge process (C).  By a unanimous vote the characterization of the discharge shall not change and that the narrative reason for discharge shall change to “Secretarial Authority”.    
 
A review of the Applicant’s service record revealed a message sent by COMNAVPERSCOM directing the retention of the Applicant based upon an unviolated retention warning. The Applicant was subsequently separated by reason of misconduct due to a pattern of misconduct despite no discernible violation of the retention warning issued 030919.  The Board unanimously agreed that the narrative reason for separation was improper, and that the narrative reason for separation shall change to “Secretarial Authority”.  Relief granted.

The Applicant requested an honorable characterization of service.  Under applicable regulations, separations based on the best interest of the service – secretarial authority should be honorable unless a general (under honorable conditions) is warranted.  A general discharge may be warranted if the Applicant’s service record contains records of nonjudicial punishments, disciplinary actions, or if other significant negative aspects existed which outweighed the positive aspects of the member’s period of service.  Additionally a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge.  The Applicant’s service record documented three nonjudicial punishments for violations of the UCMJ, Article 86 (unauthorized absence, 2 specifications), Article 91 (insubordinate conduct), Article 92 (failure to obey an order), and Article 113 (misbehavior of a sentinel).  The Applicant’s overall trait average is 2.39, normally 3.0 or higher is considered honorable.  Furthermore, he received three retention warnings and two formal counseling’s documenting his unsatisfactory performance.  Based upon a review of the Applicant’s service record the Board could discern no impropriety or inequity in the characterization of the Applicant’s service and therefore considered the discharge proper and equitable.  Relief denied.

The Applicant requested that his discharge be upgraded to aid his quest for more desirable employment.  There is no requirement or law that grants recharacterization on the issue of obtaining employment and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue is without merit.  Relief is not warranted.

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 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.  The Applicant provided a letter documenting his ten months of employment with Labor Ready.  In the Applicant’s issues he states that he has been employed for two years and that he has not been in any trouble.  The Applicant did not provide documentation in support of these issues.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to merit a change of his characterization of service.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 V, Para 503, Equity.

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.

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