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

 ex-MSSN, USN
Docket No. ND00-00863

Applicant’s Request

The application for discharge review, received 000711, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125.  After a thorough review of the records, supporting documents, 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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am writing to request an upgrade to my discharge from under than honorable conditions to honorable conditions, because my separation reasons from the military was inadequate.  My military performance and evaluation was well above average as a serviceman, I simply need help and I was made and a mockery of by my department chief.  I had no trouble before my chief reported to my command post my overall average was at 3.6 to 3.8 my recommendation for advancement was always approved.

I was not born in this country but I feel very strongly about this country.  I have a very deep accent some people had trouble understanding my accent, from the day I met my new chief I was being made fun of because of my accent.  I mad me fell depresses less of a person because I was saying to my self this is the man who supposed to be setting an example.  This process started a chain reaction I was been pushed around by other teammates I reported it but nothing was done about it, I was a little tired of this situation.  After the third or fourth time a captain's mask, I was always in the wrong.

Before that incident my performance as well as my evaluations was very good.  This is something that I had to live with; I kept it away from my wife and kids until now.  After I was discharge from the Navy I went to speech school to improve on my English, I also completed electrician school and now I am a license electrician in the City of Houston.  I am presently enroll in college at MTI upon completion I will receive a Associate degree as a network engineer I the year 09-2001.  I haven't been in trouble with the law of any kind.  I honestly think my discharge should be upgraded to honorable conditions because my separation was not fair and I would like to join the reserved as an electrician.

Thanks for the opportunity in reviewing my file and hope to here from the board soon. Respectfully yours

Documentation

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

Copy of DD Form 214 (2 copies)
USS HARLAN COUNTY's discharge recommendation dtd 8 Jul 92
Certificate of Completion of the Petty Officer Indoctrination Course dtd 30 Jun 91
Applicant's Enlisted Performance Record (NAVPERS 1070/609)
Applicant's Examination Profile Information (Mar 91)
Applicant's Recommendation for Advancement (NAVEDTRA 1430/2) dtd 21 Jun 91
Applicant's Examination Profile Information (Mar 92)
Certificate of Completion of the Mess Management Specialist Class "A" School dtd 7 Jul 89
USS HARLAN COUNTY ltr 6 Jun 91 - Presentation of Blue "E"
Applicant's MTI College of Business and Technology student ID 
City of Houston TX Electrical Journeyman License ID
11 Duplicate Pages

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881130 - 890130	COG

Period of Service Under Review:

Date of Enlistment:  890131		Date of Discharge:  920804

Length of Service (years, months, days):

	Active:    03  06  04 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.4 (4)		OTA:  3.5

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, SWASM (w/Bronze Star)

Days of Unauthorized Absence:  9 

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:

900622:	Unauthorized absence from USS HARLAN COUNTY as of 1600.

900625:	Surrendered on board USS HARLAN COUNTY as of 1900.  

910419:	NJP for violation of UCMJ, Article 91:  disobeying a lawful order from a petty officer.
	Award:  Forfeiture of $100 per month for 1 months, restriction for 10 days.  No indication of appeal in the record.  

911012:	USS HARLAN COUNTY notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offense and due to pattern of misconduct.

920215:	NJP for violation of UCMJ, Article 128:  assault.
	Award:  Forfeiture of $50 per month for 1 month, restriction and extra duty for 14 days, reduction to E-3 (suspended for 90 days).  No indication of appeal in the record.

920219:	Retention Warning from USS HARLAN COUNTY:  Advised of deficiency (not controlling your temper, assault and not following the UCMJ and Navy regs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920626:	NJP for violation of UCMJ, Article 91:  disobeyed a directed order; violation of UCMJ Article 92: disobeyed a written order; violation of UCMJ Article 86 (3 specs): unauthorized absence form appointed place of duty.
	Award:  Forfeiture of $500 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

920706:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  

920708:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding officer’s comments:  "Member's continued misconduct reflects his disregard for Navy rules and regulations.  MSSN (Applicant) is a detriment to good order and discipline.  No potential for further service.  Recommend ADSEP Under Other Than Honorable Conditions."

920726:	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 920804 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s issue states that the discharge was unfair due to his overall performance marks.  The NDRB found the applicant’s documented misconduct, including three violations of the UCMJ for Articles 91, 128, and 92, outweighed the otherwise positive aspects of his service.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  While the applicant provided some post service documentation, the NDRB did not find an upgrade is warranted.  

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 5420.174C 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023