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

ex-SH2, USN
Docket No. ND01-00196

Applicant’s Request

The application for discharge review, received 001205, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to Convenience of the Government.  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 010808.  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 and reason for 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

1.  To Whom It May Concern
On 24 January 1997, I was discharged from the United States Navy due to a pattern of misconduct.  I am writing this letter requesting a discharge upgrade.  I have served proudly and professionally over eight and half (8 1/2) years.  Five and a half (5 1/2) of those years were continuous sea service.  During my enlistment, I maintained an overall enlisted performance evaluation of 3.8 or better.  I have received several letters of commendations from admirals and captains.  I have received the Navy Unit Commendation and Good Conduct Medal.  I proudly served in operation desert shield/desert storm and the evacuation efforts in Guantanamo Bay Cuba.  My ability to continue to serve flawless, proudly, and professionally was soon over shadowed due to martial and financial matters. After serving over (5 1/2) continuous sea service, I was granted shore duty at Naval Station Florida Navy Exchange.  This shore billet changed my working surroundings and introduced the ship serviceman rate into a new field.  It was also the first time living with my family and facing the daily situations that a marriage offer.  Before reporting to shore duties, my ex-wife and I would have small arguments but never the problems that led to the pattern of misconduct.  My first offense I received was a driving under the influence charge in which I received (3) months probation, 50 hours of community service, revoked license for six (6) months and driving school.  The above mentioned charges against me happened on February 1st, 1995.  My leading Petty Officer was with me the whole time and we were in his automobile.  I brought the above mentioned items up to show when and where my pattern of misconduct started.  I was reduced in rank due to an unauthorized absence for one (1) day spent in jail.  During the administration hearing, statements from my leading Petty Officer (SH1 R_) weighted heavy on my character and naval career.  SN1 R_ had daily contact with me and was with me the night of my first offense.  I enclosed statements that shows that better leadership and judgement should have been used on his behalf.  My performance evaluations show that I remained focused and professional to the best of my abilities.  My maritial and financial problems arouse from over 1500.00 dollars in fines, alternative to violence courses that had to be taken during working hours, and trying to maintain my positive attitude.  I tried to escape this roller-coaster effect by volunteering for orders to Guantanamo Bay Cuba.  I even attended marriage counseling, alternative to violence counseling, and legal separation but my personal problems was continuing to ever shadow my hard work and dedication to the United States Navy.  My convictions with the naval and civil authorities were isolated offenses and all of the same nature.  I joined the Navy commited to be and do the best job I could.  I made mistakes and stumbled but I have managed to pick myself up and walk over or around those mistakes, and carry on.  I have served proudly until my discharge day and I've always dreamed of returning one day.  I know that if granted this upgrade, it want guarante re-entry into the armed services but would allow me to use benefits I earned while serving during peace and conflict times.  I am divorced and have no problems with civil authorities.  I have maintained my present job for over two and a half (2 1/2) years.  Having this other than honorable discharge affects daily life by not allow me to obtain better positions or pay opportunities and I ask that you consider my request for a discharge upgrade.  Thank you for reading my statements and personal letter.  I hope it is evidence in which you can use to help with your decision.  Thank you and God bless.

Documentation

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

Eleven pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		880508 - 920309	HON
		   USN			910310 - 930309	HON
	Inactive: USNR (DEP)	871209 - 880507	COG

Period of Service Under Review:

Date of Enlistment:  930310		Date of Discharge:  970124

Length of Service (years, months, days):

	Active:    03  10  15
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  12			AFQT:  31

Highest Rate:  SH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (4)	Behavior:  3.85 (4)		OTA:  3.95 (4.0 eval)
Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.14 (5.0 eval)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NUC, MUC, SASM, NDSM, SSDR (2), KLM, KLM (KLMK)

Days of Unauthorized Absence:  1

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:

950127:	Counseling:  Advised of deficiency (Performance and personal behavior), notified of corrective actions and assistance available.

950201:	Civil Conviction:  Duvall County, State of Florida for violation of driving under the influence, BAC .072.
	Pled No contest, adjudicated guilty.
Sentence: Fine $482.50, probation for 3 months, community service for 50 hours, jail for 3 days, DUI school and revocation of license for 6 months.

950224:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 1Feb95 to 0800, 2Feb85 (1 day/surrendered), violation of UCMJ, Article 128: Unlawfully choked his spouse with his hands on 18Feb95.
	Award: Reduction to SH3.  No indication of appeal in the record.

950227:	Retention Warning:  Advised of deficiency (Your nonjudicial punishment of 24 February 1995 for violation of the UCMJ, Article 86, unauthorized absence, and Article 128, assault upon your wife, by choking her with your hands.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960702:	Civil Conviction:  Duvall County, State of Florida for violation of
Charge 1: Battery/Domestic violence.
Charge 2: Driving while license suspended/revoked
Charge 3: Violation of probation.
	Pled to Charge 1: no contest, adjudication of guilty withheld.
Pled to Charge 2: no contest, adjudication of guilt withheld.
Sentence: 1: Fine $100.00, probation for 9 months with Salvation Army, attend counseling and treatment, 3: continue probation, participate in SALT Program, obtain driver's license

950710:	Applicant completed Level II treatment.

960716:	Civil Conviction: Duvall County, State of Florida for violation of driving while license suspended on 10Jul96.
Pled no contest, adjudication of guilt withheld.
Sentence: Fine $482.50 suspended.

960719:	Family Service Center found applicant to be a treatment failure.

960819:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction as evidenced by conviction in the State of Florida on 1 February 1995 for driving under the influence (.072); commanding officer's nonjudicial punishment of 24 February 1995 for a violation of the UCMJ, Article 86, unauthorized absence for a period of less than 24 hours and Article 128, choking your spouse with your hands; domestic violence on 11 August 1995 during which you were fighting with your wife; a conviction in the State of Florida on 2 July 1996 for battery/domestic violence, driving while license suspended/revoked and violation of probation; and a conviction in the State of Florida on 16 July 1996 for driving while license suspended, respectively, all of which occurred during your current enlistment.

960820:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

961030:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

961212:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction. 

970109:	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 970124 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 issue discussed his service record and accomplishments while on active duty.  The Board reviewed the applicant’s entire service record and found the negative aspects of service clearly outweigh the positive, and the Other Than Honorable discharge accurately characterizes the applicant’s service.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant requested the Board change the reason for discharge to “Convenience of the Government.”  The Board found the reason for discharge “Pattern of Misconduct” accurately describes the reason for discharge.  To change the reason would be inappropriate.  Relief is denied.

The applicant 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 recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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 “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