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

ex-AA, USN
Docket No. ND01-00633

Applicant’s Request

The application for discharge review, received 010406, 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 011031.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I (APPLICANT) PETITION THE BOARD TO GRANT ME AN UPGRADE ON MY PRESENT DISCHARGE {GENERAL/UNDER HONORABLE CONDITIONS}.  SINCE MY RELEASE FROM THE U.S. NAVY, I FEEL THAT I HAVE BECOME A PRODUCTIVE AND USEFUL CITIZEN, NO MAJOR TROUBLE, AND I AM TRYING TO GET MY LIFE BACK ON TRACK, AS I AM NOT AN UPSTANDING CITIZEN IN MY COMMUNITY.  THE UPGRADE DISCHARGE TO HONORABLE WOULD DEFINITELY HELP ME TO CONTINUE SUITABLE EMPLOYMENT, AS I WISH TO HAVE THIS NEGATIVE INFORMATION REMOVED FROM MY RECORDS.  I FEEL THAT I HAVE PAID THE PRICE, AND WISH TO BE GIVEN A SECOND CHANCE.  I WAS YOUNG AND FOOLISH AT THE TIME, AND REALIZE MY MISTAKE AND TO THIS DAY I DO REGRET IT.  I FEEL LIKE I HAVE MAD GREAT STRIDES IN THE PAST TEN YEARS AND REQUEST THE BOARD PARDON ME AND GRANT ME AN HONORABLE DISCHARGE.

Documentation

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

Character reference dated March 29, 2001
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	901207 - 901230	ELS

Period of Service Under Review:

Date of Enlistment:  901231		Date of Discharge:  920708

Length of Service (years, months, days):

	Active:    01  07 09
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  13			AFQT:  75

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  16

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910102:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement:  Failed to come to complete stop Jun90, dismissed, failed to yield right of way Jun90, dismissed, and possession of cocaine Apr86, dismissed.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910509:	Defense Investigative Service report.  Found on microfiche.

910927:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from place of duty 0700-1115, 28Aug91; (2) Unauthorized absence from place of duty on 0700, 29Jul91-0700, 9Aug91 (11 days).
	Award: Forfeiture of $300 per month for 2 months, restriction for 30 days, reduction to AA.  Reduction suspended for 6 months.  No indication of appeal in the record.

911115:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Violate a lawful general regulation on 2030, 10Oct91, by wrongfully wearing civilian clothes while in a restricted status, (2) Violate a lawful general regulation on 2030, 10Oct91, by wrongfully consuming alcohol while in a restricted status.
	Award: Forfeiture of $439 per month for 1 month, restriction for 13 days.  No indication of appeal in the record.

911115:	Retention Warning from Attack Squadron Thirty-Five:  Advised of deficiency (Unauthorized absence on 0700-1115, 28Aug91 and 0700, 29Jul91 to 0700, 9Aug91, breaking restriction on 10Oct91), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920123:	NJP for violation of UCMJ, Article 86: Total of 5 days absence, violation of UCMJ, Article 134: Restriction breaking.
	Award: Forfeiture of $440 per month for 2 months, reduction to AA.  No indication of appeal in the record.

920207:	Attack Squadron Thirty-Five notified applicant of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service by failing to reveal your civilian involvement and by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the Uniform Code of Military Justice in your current enlistment.

920325:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920327:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed defective enlistment and induction due to fraudulent entry into the naval service and misconduct due to a pattern of misconduct, and recommended retention.

920420:	Commanding officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service by failing to reveal civilian involvement and by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the Uniform Code of Military Justice in the current enlistment.  Commanding officer’s comments (verbatim): I do not concur with the recommendation of the Administrative Board for the retention of AA (applicant).  The Navy has neither the time nor the money to waste on non-performers like AA (applicant).  He has been an incredible administrative burden to this command.  The time spent on AA (applicant) includes three times at CO's mast for various offenses of Unauthorized Absence and Breaking Restriction and four times at Executive Officer's Inquiry, each including specific verbal counseling as to the actions necessary for AA (applicant) to correct his deficiencies.  In addition he received written warning in the form of a page 13 dated 15 November 1991.  Less than two weeks later AA (applicant) broke squadron restriction by being UA from muster.  Instead of punishing this offense, I recommended the separation paperwork be started on AA (applicant).  However before the separation process could begin, AA (applicant) again chose to go in a period of Unauthorized Absence which could not be ignored.  As AA (applicant) states in the proceedings of the board, he knew full well that his going UA at that time could indeed result in his separation from the Navy, yet he still decided to break Navy Regulations.  Members of the Navy like AA (applicant) who continue to break the rules after numerous attempts at counseling cannot be allowed to continue in the Naval service.  With all the difficulty we have in retaining strong performers these days, it just doesn't make sense to keep weak ones around.  Not only is AA (applicant) a burden to the command, he is a discredit to the Navy.  In fact, the day this package was to be forwarded, AA (applicant) failed to return before the expiration of his authorized leave.  Despite specific counseling on the subject, he failed to return on time.  I strongly recommend the separation of AA (applicant) for the reasons of misconduct due to a pattern of misconduct and due to Defective Enlistment and Fraudulent Entry into the naval service.

920605:	Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy.

920609:	Assistant Secretary of the Navy, (Manpower and Reserve Affairs) approved applicant's discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

920612:	BUPERS directed the applicant's discharge under honorable conditions (general) 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 920708 under honorable conditions (general) 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).

Issue 1.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The applicant’s record would normally be characterized as under other than honorable.  The discharge was proper and equitable.  Relief denied.

To permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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.  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