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

ex-SA, USN
Docket No. ND01-00191

Applicant’s Request

The application for discharge review, received 001204, 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 010524.  After a thorough review of the records, 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 (verbatim)

1.  To whom it may concern, the main reason why I wish to have my discharge upgraded is simple, I have asthma and was diagnosed with this symptoms in the military.  I have no medical benefits at this present time and I wish to have medical treatment.

2.  I also have two years of eligibility left on my G.I. Bill and would like to attend school to better myself as an American Citizen.  I ask you please to do not take this last & final opportunity away.

3.  So in closing will the board please upgrade my discharge so I can receive all my benefits that I have not had for the last 8 yrs.  Thank you sincerely.

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)	890828 - 890906	COG

Period of Service Under Review:

Date of Enlistment:  890907		Date of Discharge:  921102

Length of Service (years, months, days):

	Active:    03  01  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  25

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.13 (3)	Behavior:  2.86 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDS, SASM 

Days of Unauthorized Absence:  22 

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:

900610:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties 900602.
	Award:  Forfeiture of $100.00 per month for 1 month.  No indication of appeal in the record.

901206:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on 901114, violation of UCMJ Article 113: Misbehavior of sentinel or lookout on 901119.
	Award:  Forfeiture of $421.00 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

910826:	Retention Warning from [USS MAUNA KEA (AE-22)]:  Advised of deficiency (Violation of the UCMJ, Article 89, Disrespect toward a superior commissioned officer, and Article 113, Misbehavior of sentinel, on or about 901119), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920815:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ Article 86: Absent with leave 920710 to 920801[22days/R] and failed to go to his appointed place of duty.
	Award:  Forfeiture of $440.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

920901:	[USS MAUNA KEA (AE-22)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920901:  	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 statement in own behalf either verbally or in writing before and Administrative Board or in writing if an Administrative Board is not convened.

920903:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim):  SN_____(applicant) behavior over the last three years in the Navy has been below average as documented by his evaluation marks of mostly 3.2 and 3.4.  He has been informally counseled numerous times and been given numerous chances to improve his performance and conduct.  Despite these chances SN_____ (applicant) has been to captain’s mast three times.  His performance and behavior have become a burden to the Navy and his conduct is contrary to the good order and discipline of the Naval Service.  Therefore, I most strongly recommend that SN______(applicant) be separated from the Naval Service under other than honorable conditions.  

920928:	NJP for violation of UCMJ, Article 113: Misbehavior or sentinel or lookout (sleeping on watch).
	Award:  Confinement on Bread & Water for 3 days.  No indication of appeal in the record.

921008:	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 921102 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,  facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issue 1, a medical diagnosis on active duty or during post-service is not an issue upon which this Board can grant relief.  When reviewing a discharge, the Board does consider the extent to which a medical problem, diagnosed or undiagnosed while on active duty, might effect an applicant's performance and ability to conform to the military's standards of conduct and discipline.  The Board does not consider the circumstances surrounding the applicant's diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record.  In fact, the Board has seen no connection between the applicant's medical condition and his misconduct.  Relief is not warranted. 

In response to applicant’s issues 2 and 3, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 

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, effective 15 Aug 91 until 
04 Mar 93), 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 dereliction in the performance of duties, 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 “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