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

 ex-OSSN, USN
Docket No. ND00-01007

Applicant’s Request

The application for discharge review, received 000829, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719.  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/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  We ask the board to consider the applicant's entire period of service especially his overall evaluation.  We contend that the discharge is to harsh and ask that it be changed accordingly.

Documentation

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

Letter from Applicant
Copies of DD Form 214 (4)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	910717 - 920621	COG

Period of Service Under Review:

Date of Enlistment:  920622		Date of Discharge:  960517

Length of Service (years, months, days):

	Active:    03  10  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (9 months extension)

Education Level:  12			AFQT:  43

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NAVY"E"RIBBON (2), AFEM, SSDRw2b* 

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:

921001:	NJP for violation of UCMJ, Article 86: Did on or about 920926, without authority go from his appointed place of duty, violation of UCMJ Article 92: Having knowledge of a lawful order, did on or about 2200 920926 fail to obey the same by wearing his dungaree uniform off base.
	Award:  Forfeiture of $215.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 7 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

930717:	NJP for violation of UCMJ, Article 116: Breach of the peace, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134: Disorderly conduct.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

931022:	NJP for violation of UCMJ, Article 123a: Making and uttering checks without sufficient funds.
	Award:  Restriction and extra duty for 45 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

931022:	Retention Warning from [USS BLUE RIDGE (LCC-19)]:  Advised of deficiency (Violation of the UCMJ, Article 123a, making and uttering check without sufficient funds), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960224:	NJP for violation of UCMJ, Article 92: Negligent dereliction in the performance of duty on 960125.
	Award:  Forfeiture of $604.00 per month for 1 month (Forfeiture of $404.00 for 1 month suspended for 6 months), extra duty for 15 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

960301:	NJP for violation of UCMJ, Article 92: Violation of a lawful general regulation by wrongfully introducing an alcoholic beverage on board USS NIMITZ on 960225.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

960315:	Forfeiture of $404.00 for 1 month and RIR to E-3 suspended at CO's NJP of 960224 vacated due to continued misconduct.

960316:	USS NIMITZ notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by his violation of the UCMJ, Article 92 (2 Specifications), Failure to obey order and violation of general regulation; Article 123a Making and uttering checks without sufficient funds; and Article 128 Assault; by reason of misconduct due to a pattern of misconduct as evidenced by his three or more punishment unde the UCMJ in violation of his Administrative Counseling/Warning Page 13 within his current enlistment.

960320:  	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 submit statements in his own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

960322:	Medical evaluation indicates applicant is an alcohol abuser with dependence.

960410:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

960417:	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 960517 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to the applicant’s issue, the Board found that the applicant’s enlisted performance evaluation averages were very good, however, the applicant went to NJP five times during his enlistment.  The applicant violated several UCMJ Articles including Article 86 (unauthorized absence), Article 92 (orders violations on three occasions), Article 116 (breach of peace), Article 128 (assault), Article 134 (disorderly conduct) and Article 123a (bad checks).  Unfortunately, the applicant’s service record does not exculpate him from his numerous occasions of misconduct.  The applicant’s discharge is proper and equitable as issued.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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.  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, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey a lawful order or regulation, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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 “afls10.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