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

 ex-TMSA, USN
Docket No. ND99-00992

Applicant’s Request

The application for discharge review, received 990720, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I am requesting an upgrade to an honorable discharge because I feel I deserve a second chance and I have matured.  I have learned from my mistakes and I have not gotten in trouble with the law.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920619 - 930606	COG

Period of Service Under Review:

Date of Enlistment:  930607		Date of Discharge:  970116

Length of Service (years, months, days):

	Active:    03  07  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  TM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.55 (4)	Behavior:  3.75 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NATO, NUC, AFSM, SASM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

960822:	NJP for violation of UCMJ, Article 91: Disrespect toward a PO on 18Jul96, violation of UCMJ Article 121: Wrongful appropriation of a pair of Sony MDR V100 headphones on 16Jul96, property of the ship's library.
	Award:  Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to TMSN.  No indication of appeal in the record.

960827:	Retention Warning:  Advised of deficiency (Disrespect toward a non-commissioned officer and wrongful appropriation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

961105:	NJP for violation of UCMJ, Article 134: Indecent acts with another by kissing him on the lips and touching his crotch area.
	Award:  Restriction for 30 days, reduction to TMSA.  No indication of appeal in the record.

961105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your two nonjudicial punishments during this enlistment, misconduct due to commission of serious offenses (Article 91, Article 121, and Article 134), and by reason of homosexual conduct as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act, which creates a rebuttable presumption that you engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.

961105:	Applicant advised of his 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 

961114:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of serious offenses and by reason of homosexual conduct. 

961212:	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 970116 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to issue 1, the applicant was multiple processed for separation by reason of misconduct due to the commission of serious offenses, misconduct due to a pattern of misconduct, and by reason of homosexual conduct.  The separation authority determined that a pattern of misconduct most clearly described the reason for discharge.   To permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023