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

ex-MSSN, USN
Docket No. ND00-00970

Applicant’s Request

The application for discharge review, received 000811, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member avers that his nonjudicial punishments and subsequent discharge were the result of miscommunication not deliberate misconduct.  On this basis, he opines that upgrade of the character of service to full honorable is warranted.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174c., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214 (2 copies)
Copy of DD Form 149
Photography
Copy of Honorable Discharge certificate dated August 30, 1994
Copy of Certificate of Reenlistment dated August 31, 1994
Copy of Good Conduct Award dated January 26, 1996
Copy of citation for February 1993 to January 1996

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		820810 - 870807	HON
		   USN			910111 - 930830	HON
	Inactive: USNR (DEP)	820712 - 820809	COG
		   USNR (DEP)	890112 - 890125	COG
		   USNR		890126 - 910110	HON

Period of Service Under Review:

Date of Enlistment:  940831		Date of Discharge:  981014

Length of Service (years, months, days):

	Active:    04  01  14
	Inactive:  None

Age at Entry:  32			Years Contracted:  6

Education Level:  12			AFQT:  29

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  4.00	4.0 evals
Performance:  3.20 (5)	Behavior:  3.20 (5)		OTA:  3.37	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), NER, MUC, AFEM, NRSSR, GCM (2), NUC

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

970806:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward a petty officer, violation of UCMJ Article 134 (2 specs): Communicating a threat.
	Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 30 days, reduction to MS3.  Forfeiture for 1 month and reduction suspended for 6 months.  No indication of appeal in the record.

970806:	Retention Warning:  Advised of deficiency (Disrespectful in language toward a petty officer; and communicating threats.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980804:	NJP for violation of UCMJ, Article 91: Disobeying a superior petty officer.
	Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days, reduction to MS3.  Reduction suspended for 6 months.  No indication of appeal in the record.

980929:	Vacate suspended forfeiture of $400.00 for 1 month, extra duty for 15 days and reduction to MS3 awarded at CO's NJP of 4Aug98 due to continued misconduct.

980929:	NJP for violation of UCMJ, Article 89 (2 specs): Disrespect towards a superior commissioned officer, violation of UCMJ, Article 90: Willfully disobeying a superior commissioned officer.
	Award: Forfeiture of $500 per month for 1 month, restriction and extra duty for 30 days, reduction to MSSN.  No indication of appeal in the record.

981014:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981014 general (under 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 states in issue 1 that his NJPs were a result of “miscommunication, not deliberate misconduct.”  While the applicant may feel there was miscommunication, the applicant was found guilty at CO’s NJP on 3 separate occasions of various violations of the UCMJ, some of which were court martiable offenses.  It is irrelevant that the communication was “deliberate” or not on his behalf.  The Board finds the applicant’s discharge characterization of general (under honorable conditions) equitable considering the applicant had 3 CO’s NJPs during his enlistment and average evaluation marks.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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