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Docket No. ND06-00159

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

FOR OFFICIAL USE ONLY

ex-FA, USNR
Docket No. ND06-00159

Applicant’s Request

The application for discharge review was received on 20051101.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  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 at the Washington Navy Yard, Washington D.C.  
The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060926.  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 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 application:

“For employment reasons & peace of mind.  I was very young & irresponsible & got caught up in the wrong crowd.  Not serving my country the full term is the greatest mistake I have ever made.  I am a father of three & thru them I have grown to become a descent man.  I hope to lead by example & teach them not to make the many mistakes I have made.  I believe upgrading my discharge will not only benefit me but my family as well.  Thank you for reviewing my discharge.”

Documentation

Only the service records was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19901029		Date of Discharge:  19920703

Length of Service (years, months, days):

	Active:    01 00  16  (Does not exclude lost time.)
	Inactive:  00  07  21

Time Lost During This Period (days):

	Unauthorized absence:  20 days
	Confinement:		  23 days

Age at Entry:  18

Years Contracted:  8

Education Level:  12				AFQT:  39

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (2)		Behavior:  3.1 (2) 			OTA:  3.40 

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

910618:	Commenced active duty for a period of 24 months. 

910926:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1: At Tijuana border, on or about 0150, 2 Sept 91, violate a lawful general regulation, to wit: COMNAVBASESDIEGOINST 1050.7, dtd 23 Oct 90, by wrongfully violating the Tijuana curfew hours.
	Specification 2: Having knowledge of a lawful order issued by CO, RTC, San Diego CA, to wit: NAVCRUITRACOMSDIEGOINST, 5400.4J, Para 0704.1 dtd 7 Apr 90, an order which it was his duty to obey, did at the Tijuana Mexican/American border crossing, on or about 0150, 2 Sept 91, fail to obey the same by wrongfully wearing civilian clothes.
	Award:  Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

910926:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 92.  Failure to obey regulation : Spec 1: Breaking Tijuana curfew, Spec 2: Wrongfully wearing civilian clothes.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911206:	NJP for violation of UCMJ, Article 92: Violated a lawful general regulation by wrongfully wearing an earring on board USS NIMITZ {CVN 68} on 1 Dec 91.
	Award:  Forfeiture of $200.00 pay per month for 1 month.  No indication of appeal in the record.

911218:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 92.  Violated a lawful general regulation by wrongfully wearing an earring on board USS NIMITZ (CVN-68) on 1 Dec 1991.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920115:	NJP for violation of UCMJ, Article 134: Stole services from Denny’s Restaurant, to wit:  A meal, of a value of about $10.00, on 15 Jan 91.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction for 21 days.  No indication of appeal in the record.

920115:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 134.  You stole services from Denny’s Restaurant, to wit:  A meal, of a value of about $10.00, on 15 January 1992.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920303:	NAVHOSPBRENWA: Applicant arrived with NIS Agent to have sexual assault kit obtained.  Applicant is alleged perpetrator in alleged sexual assault case.  Applicant states he had consensual sexual relations with the alleged victim.  Denies use of force or resistance by alleged victim.  Assault evidence kit completed as requested.

920507:	Applicant to unauthorized absence at 0700 on 920507.

920527:	Applicant from unauthorized absence at 0700 on 920527 (20 days/surrendered).

920530:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86: UA from NIMITZ from 920507 to 920527.
	Charge:  violation of the UCMJ, Article 134 (2 specs):
	Specification 1:  Did wrongfully commit an indecent act with a female by inserting his penis into her mouth while another male was having sexual intercourse with her.  
	Specification 2:  Did wrongfully have sexual intercourse with a female, married woman, not his wife.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $200.00 pay per month for 1 month, confinement for 24 days, confinement for 3 days on bread and water.
	CA action 920601:  Sentence approved and ordered executed.

920530:	Applicant fit for confinement

920606:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses as evidenced by your record.  If separation is approved, the characterization of service may be under other than honorable conditions

920607:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
	Applicant did not object to separation.

920610:	Commanding Officer, USS NIMITZ, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses as evidenced by service record.  Commanding Officer’s comments:  “SNM received CO’s NJP on 06 Dec 91 for wearing an earring onboard NIMITZ.  On 15 Jan 92 SNM received CO’s NJP for theft of services.  On both occasions SNM was issued a page 13 warning stating that any further misconduct would make him eligible for administrative separation processing and that discharge could be characterized as other than honorable.  Despite those warnings SNM received a summary court-martial on 30 May 92 for a lengthy UA (20 days), indecent acts and adultery.  SNM’s continued serious misconduct cannot be tolerated and is incompatible with maintaining high standards of discipline, performance and readiness.  SNM possesses no potential for further Naval Service.  I strongly recommend that SNM be separated from the Naval Service with characterization of service as other than honorable.”

920618:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

920621:	Applicant released from confinement and returned to full duty.

920623:	Applicant did not desire in-patient treatment at a VA hospital prior to discharge.

920703:	DD Form 214: Applicant discharged with Under Other Than Honorable Conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920703 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 (B and C).

The Applicant requests an upgrade to General (Under Honorable Conditions), implying that his discharge was inequitable because of his youth and immaturity at the time of service.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  Most servicemembers begin their service at a relatively young age.  It must be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  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 19910926 for violation of 2 specifications of UCMJ Article 92 Failure to obey order, regulation;
•	Retention warning entry on 19910926 for deficiencies in performance and conduct concerning violation of UCMJ Article 92;
•	Non-judicial punishment proceedings on 19911206 for violation of UCMJ Article 92 Failure to obey order, regulation;
•	Retention warning entry on 19911218 for deficiencies in performance and conduct concerning violation of UCMJ Article 92;
•	Non-judicial punishment proceedings on 19920115 for violation of UCMJ Article 134 Stolen services;
•	Retention warning entry on 19920115 for deficiencies in performance and conduct concerning violation of UCMJ Article 134; and
•	Summary Court-Martial conviction on 19920530 for violation of UCMJ Article 86 Unauthorized absence and 2 specifications of Article 134 Indecent Act and Adultery.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service.  An upgrade to general would be inappropriate; therefore relief is denied

The Applicant is advised that there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The Applicant informs the Board that he is a “father of three [and] thru them [he has] grown to become a descent man.”  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 service, 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.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  Relief on this basis is 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 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, effective 15 Aug 91 until 
04 Mar 93), 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.

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