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Docket No. ND05-01481

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

FOR OFFICIAL USE ONLY

 ex-MSSA, USN
Docket No. ND05-01481

Applicant’s Request

The application for discharge review was received on 20050907.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or entry level separation or uncharacterized and the Narrative Reason for Separation be changed.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060619.  After a thorough review of the available 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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

“I know I have made a lot of mistakes, I cannot accuse anyone but myself.  I think I have learned from my mistakes and have matured. I have always respected and loved my country.  From my knowledge, I have served my country with integrity, honesty and honor, both in the military and the civilian world.  I was a cook on the USS KIDD DDG-993 and I did my job with pride, and I kept the morale high.  My character was judged only by individuals who found reason with no basis to dislike me.  I did not know why, whether it was because of my race, religion or because I was different.  I gave these individuals no cause to find fault with me, however the majority of my shipmates like and trusted me because I performed my duties to the best of my ability with respect for everyone.  I think that I have suffered enough because I cannot get a government job or serve my country during war time.  I know through my experience and knowledge of military and civilian life, that I could pass my knowledge to other individuals to not make the same mistakes I did.  So please grant me an honorable discharge to honor my family and country.

Sincerely, N_ M_ S. [signed] (Applicant)]
2005 31, 8”

Documentation

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

Applicant’s DD Form 214
Commanding Officer’s Appointment to Administrative Board dtd January 20, 1994
Enlisted Performance Evaluation Report (2 pgs)
Letter of Commendation
Potential Character Witness Questionnaire (5 pgs)
Letter of Appreciation 
Administrative Discharge Board Findings and Recommendations Worksheet
Employment Reference Letter P_ J. A_, Saks Fifth Avenue, dtd June 30, 1995     

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19911125 – 19920120		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920121		Date of Discharge:  19940124

Length of Service (years, months, days):

	Active:    02  00  04  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  23

Years Contracted:  4 

Education Level:  12				AFQT:  33

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)		Behavior:  3.3 (2) 		OTA:  3.60 

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, Navy “E” Ribbon with 1 Silver “E”.

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

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

Chronological Listing of Significant Service Events: 

931026:	NJP for violation of UCMJ, Article 128: Assault.
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

940107:	NJP for violation of UCMJ, Article 89: Disrespect.
Violation of UCMJ, Article 92: Failure to obey other lawful order.
Violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

940121:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct by reason of the commission of a serious offense on 27 October 1993 and 7 January 1994, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions). [Extracted from documents submitted by Applicant.]

940124:	DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to pattern of misconduct per MILPERSMAN 3630600.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940124 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 the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant’s record reveals two nonjudicial punishment proceedings.  According to MILPERSMAN 3630600, in order to satisfy a pattern of misconduct, a member must have three or more discreditable involvement with civil and/or military authorities or a pattern of discreditable management of personal and financial affairs.  Further, the Applicant must have violated counseling prior to initiating processing.  In the absence of a complete discharge package, the Board presumed that the Applicant’s record of misconduct during this enlistment met the criteria for pattern of misconduct.  When this occurs, the Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, the Board considered the Applicant’s discharge proper and equitable.  Relief not warranted.

The Applicant admits that he made a lot of mistakes.  Notwithstanding, the Applicant desires an upgrade based on quality of service.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable.  Indeed, the Applicant’s records contain:
•	Non-judicial punishment proceedings on 19931026 for violation of UCMJ Article 128 Assault and
•	Non-judicial punishment proceedings on 19940107 for violation of UCMJ Article 89 Disrespect, Article 92 Failure to obey order, and Article 134 Disorderly conduct, drunkenness.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls below that required for a change in characterization of service.  Relief denied.

The Applicant requests a Narrative Reason for Separation change.  Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted.  Based on the available summary of service and a presumption of regularity, a pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Therefore changing the Narrative Reason for Separation would be inappropriate.  Relief on this basis is denied.

The Applicant is advised that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities.  Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  These issues do not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is denied.

While 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 Navy, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted one employer reference for consideration.  The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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, 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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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