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

ex-ETSR, USN
Docket No. ND01-00021

Applicant’s Request

The application for discharge review, received 001002, 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: UNDER OTHER THAN 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 proffers that diagnosed occupational stress impaired his ability to serve and sufficiently mitigated his misconduct of record to warrant upgrade.

2.  (Equity Issue) This former member further opines that his character of discharge is too harsh for his misconduct of record and merits upgrade.

3.  (Equity Issue) This former member finally request 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)
Appointment of veterans service organization as claimant's representative form dated April 19, 2000 selecting American Legion
Statement from applicant (9 pages)
Statement from applicant's father dated March 21, 2000
Fifty-four pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960826 - 970714	COG

Period of Service Under Review:

Date of Enlistment:  970715		Date of Discharge:  000128

Length of Service (years, months, days):

	Active:    02  06  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  88

Highest Rate:  ETSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990408:	NJP for violation of UCMJ, Article 92: Failure to obey an order or a regulation.
	Award: Oral admonition, restriction and extra duty for 30 days, reduction to ETSN.  Restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

991110:	NJP for violation of UCMJ, Article 86 (3 specs): Failure to go to appointed place of duty, violation of UCMJ, Article 91: Disobeying a lawful order from a senior chief petty officer, violation of UCMJ, Article 92: Dereliction of duty.
	Award: Restriction and extra duty for 30 days, reduction to ETSA.  No indication of appeal in the record.

991110:	Retention Warning:  Advised of deficiency (Failing to go to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from CO's message dated 29Dec99.]

991216:	Vacate suspended reduction to ETSA awarded at CO's NJP of 991110 due to continued misconduct.

991216:	NJP for violation of UCMJ, Article 91: Disobey a lawful order of a Chief Petty Officer, violation of UCMJ, Article 92 (3 specs): Dereliction of duty.
	Award: Restriction and extra duty for 30 days, reduction to ETSR.  No indication of appeal in the record.

991222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

991222:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991229:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

000104:	Commander, Cruiser-Destroyer Group 8 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 000128 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 representative submitted the following as issue 1: (Equity Issue) This former member proffers that diagnosed occupational stress impaired his ability to serve and sufficiently mitigated his misconduct of record to warrant upgrade.  A medical or psychological diagnosis is not an issue upon which the NDRB can grant relief.  When reviewing a discharge, the NDRB does consider the extent to which a medical or psychological problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB does not consider the circumstances surrounding the applicant’s stated condition nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct.  In fact, the NDRB sees no connection between the applicant’s misconduct and his medical condition.  The applicant’s misconduct began before his medical condition and continued after his condition was resolved.  Relief is not warranted.

The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further opines that his character of discharge is too harsh for his misconduct of record and merits upgrade.  The Board found that the applicant received three NJP’s for violating UCMJ Articles 86, 91, and 92 for the offenses of failing to obey an order, failure to go to place of duty, disobeying a lawful order, and dereliction of duty.  These are serious offenses which could have sent the applicant to a courts-martial.  The applicant also violated a retention warning after his second NJP which resulted in his discharge for pattern of misconduct.  The Board finds no merit in this issue.

The applicant’s representative submitted the following as issue 3: (Equity Issue) This former member finally request 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.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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, is considered.  The applicant provided no documentation of his post-service.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  Relief denied.

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