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

 ex-MSSR, USN
Docket No. ND01-00707

Applicant’s Request

The application for discharge review, received 010430, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before a traveling panel closest to Akron, Ohio.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I was a young man married to the wrong woman who really messed up my Navy carrier.  I didn't know of the things my wife forged.  I really thought she had a miscarriage.  I really feel I was a good sailor and had several letters of appreciations of squadron officers during the Desert Storm War.  Plus a letter of appreciation from President Bush.  I've tried to write several of these letters but have never received anything back.  I know I could and will serve my country to the best of my knowledge and accuracy.  Please give me a second chance.  Would really like to go Active in the future.  I've concerned my Congressman on the matter.  Please give me the opportunity to prove to you, and my country that I am a good soldier.  T_ S_ is my Congressman.  Please allow me to prove my dedication to the armed forces of the United States.  I am a 2-time veteran.  Desert Storm & Persian Gulf Wars.  I would like to be acknowledged by my country and family members of being a veteran.  Please give me a 2nd chance to prove myself.  I would like to join the Navy Reserves first to show you and to prove to you my honor and reasons for being a great soldier.  Again please allow me to reenlist in the military.  Thank you for your time and consideration.  Sincerely

Documentation

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

Letter from applicant dated September 12, 2001
Character reference dated July 27, 2001
Character reference dated July 28, 2001
Character reference, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	891117 - 900122	COG

Period of Service Under Review:

Date of Enlistment:  900123		Date of Discharge:  921117

Length of Service (years, months, days):

	Active:    02  09  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  54/46

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.96 (5)	Behavior:  3.16 (5)		OTA:  3.32

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, NMCOSM

Days of Unauthorized Absence:  14 

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:

910418:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0615-0805, 21Mar91.
	Award: Forfeiture of $50 per month for 2 months.  No indication of appeal in the record.

920111:	Applicant to unauthorized absence 0500, 11Jan92.

920123:	Applicant from unauthorized absence 1752, 23Jan92 (12 days/surrendered).

920207:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 11 January 1992 until 23 January 1992.
	Award: Restriction and extra duty for 30 days, reduction to MSSN.  Reduction suspended for 6 months. No indication of appeal in the record.

920207:	Retention Warning from USS FORRESTAL (CV 59):  Advised of deficiency (Unauthorized absence from unit from 11-13Jan92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920913:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence 0500, 29Jul92 to 0730, 31Jul92 (2 days/surrendered), (2) Unauthorized absence from 0730, 2Sep92 to 0500, 3Sep92, (3) Unauthorized absence from 0500, 8Sep92 to 0130, 9Sep92, violation of UCMJ, Article 107: False official statement on 6Aug92, violation of UCMJ, Article 134: Unlawfully altered public records on 6Aug92.
	Award:  Forfeiture of $440 per month for 1 month, restriction for 60 days, reduction to MSSA.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

921103:	Vacate suspended forfeiture of $440.00 awarded at CO's NJP dated 13Sep92 due to continued misconduct.

921103:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order on 24Oct92, violation of UCMJ, Article 134: Breaking restriction on 24Oct92.
	Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSR.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

921104:	USS FORRESTAL (AVT 59) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

921104:  	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 obtain copies of the documents used to support the basis for the separation.

921109:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. 

921116:	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 921117 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).

Issue 1.   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.  The applicant’s discharge characterization accurately reflects his service to his country.  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 (false official statement, unlawfully altering public records and disobeying a lawful order).  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 the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate. 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, 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