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

ex-AR, USN
Docket No. ND00-00976

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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010209.  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: OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  If at all possible could my discharge be changed to honorable.  I am attending college and it is hard to get enough money with my discharge.  Also it is hard to get a job.  I am very sorry for my actions in the navy, but I don't want it to effect the rest of my life.  If not honorable the at least to general/honorable conditions.  Once again I am sorry.  Please consider my request.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			None
	Inactive: USNR (DEP)	980821 - 981109	COG

Period of Service Under Review:

Date of Enlistment:  981110		Date of Discharge:  990820

Length of Service (years, months, days):

	Active:  00  09  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10			AFQT:  59

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

990512:	Retention Warning:  Advised of deficiency (Art 92, failure to obey orders or regulations, to wit: On or about 990428, wrongfully smoking cigarettes in the 2ND deck head of the navy barracks (bldg 7001 on board Keesler, AFB, MS.  This inappropriate actions/conduct has brought discredit upon the U.S. Navy and is contrary to good order and discipline), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990512:	NJP for violation of UCMJ, Article 92: Failure to obey CO, not to use tobacco products in the Navy Barracks on 990428.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction for 30 days.  No indication of appeal in the record.

990602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government homosexual conduct as evidenced by member's statement that he is a homosexual, or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, attempting to engage in, or soliciting another to engage in homosexual acts (a).

990609:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990629:	NJP for violation of UCMJ, Article 86: (4 Specifications), UA from appointed place of duty on 990615, 990623, 990623, and 990624, violation of UCMJ Article 92: (4 Specifications), Spec 1: Failure to obey AG1 T____ to get a haircut on 990615, Spec 2: Failure to obey PR1, not to be in room during working hours, on 990615, Spec 3: Failure to obey PR1 to get a haircut on 990617, Spec 4: Failure to obey PR1, not to be in room during working hours, on 990623.
	Award:  Forfeiture of $479.70 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

990726:	Chief of Naval Education and Training authorized discharge other than honorable conditions by reason of misconduct due to pattern of misconduct.
 
990729:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government homosexual misconduct as evidenced by member's statement that he is a homosexual, or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, attempting to engage in, or soliciting another to engage in homosexual acts (a) and misconduct due to a pattern of misconduct.

990729:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990729:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and homosexual conduct as evidenced by member's statement that he is a homosexual, or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, attempting to engage in, or soliciting another to engage in homosexual acts (a).

990805:	CNPC 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 990820 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 went to CO’s NJP on 2 separate occasions in only 9 months of service.  In the applicant’s issue 1, the Board has no obligation to change the applicant’s discharge in order to allow him to go back to school or to obtain better employment.  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