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

 ex-MMFR, USN
Docket No. ND01-00643

Applicant’s Request

The application for discharge review, received 010416, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 011127.  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

1.  During the time of being U/A, I received the doctor's letter.
I was told by Lt. I_ I would be able to re-enter at a later date.

A few awards, there should be more in file.  Thanks

2.  This letter is concerning the upgrade of my discharge.  I would really like to eventually come back and devote some more of my time to the military.  But as of now, I would really like to have my dicharge upgraded.  During the time of my U/A, I was tending to my father who had severe health problems at the time.  That is why I started my U/A statis, I used all of my leave I could possibly use.  During that time on my way back to report I was in a severe car accident. (concussion,fractured hip,two cracked left ribs) After covelesent leave, I went to Portsmouth Naval Hospital for depression.  I was diagnosed with post concussive syndrome and put on medication.  While all of this was going on my aunt (legal gaurdian), was having kidney problems and having to go to dialysis and she finally went through the transplant operation.  I was so confused during this time I didn't care about anything but, my family and my daughter who was over six hundred miles away in Louisville, Ky. and I was stationed in Nofolk, Va.  I really liked what I was doing with myself, I know there is a future there.  I know I did have some earlier problems, But I was finnally getting settled with the life style.  Then that is when the problems arose, (Thanks for your time)
Here is some documentation.
I can be contacted at (number deleted)

Documentation

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

Message from American Red Cross dated March 5, 2000
Letter from HCR-Manor Care re applicant's father dated March 20, 2000
Copy of Home Instructions for brain injury program dated April 7, 2000
Statement written by nurse for applicant's father dated February 14, 2000
Work reference, undated
Character performance, undated
Statement from members of applicant's family, undated
Copy of letter of appreciation
Copy of certificate of completion
Copy of mission area excellence award
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970313 - 970818	COG

Period of Service Under Review:

Date of Enlistment:  970819		Date of Discharge:  001015

Length of Service (years, months, days):

	Active:    03  01  27
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.50 (2)		OTA:  3.17

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, SSDR

Days of Unauthorized Absence:  56

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:

981104:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward non-commissioned officer, violation of UCMJ, Article 92: Failure to obey order, violation of UCMJ, Article 117 (2 specs): Provoking speeches and gestures, violation of UCMJ, Article 128: Assault.
	Award: Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFR.  Reduction suspended for 6 months.  No indication of appeal in the record.

981104:	Retention Warning:  Advised of deficiency (Insubordinate conduct toward non-commissioned officer, failure to obey order, provoking speeches and gestures (2 specifications), assault).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

981230:	Vacate suspended reduction to MMFR awarded at CO's NJP on 4Nov98 due to continued misconduct.

981230:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey other lawful written order, (2) Failure to obey other lawful order.
	Award:  Forfeiture of $519.15 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000916:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (3 specs):
	Specification 1: Unauthorized absence from 0550, 16Mar00 to 1600, 14Apr00 (29 days/surrendered).
	Specification 2: Unauthorized absence from 0550, 21Apr00 to 0550, 28Apr00 (7 days/surrendered).
	Specification 3: Unauthorized absence from 0550, 2May00 to 0050, 23May00 (20 days/surrendered).
	Charge II: violation of the UCMJ, Article 87 (2 specs):
	Specification 1: Miss ship's movement on 29Mar00.
	Specification 2: Miss ship's movement on 2May00.
	Finding:  to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Confinement for 30 days, reduction to MMFR.
	CA action 000907:  Sentence approved and ordered executed.

000907:	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.

000907:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. 

000922:	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.

001011:	Commander, Amphibious Group TWO 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 001015 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).

Issues 1 and 2. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and a Summary Court-Martial  on another occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The discharge was proper and equitable.  Normally, 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), 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 “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