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

 ex-MSSN, USN
Docket No. ND01-01044

Applicant’s Request

The application for discharge review, received 010808, 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 020307.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Some issues are renumbered

1.  I applied for a hardship discharge but was unfairly told to forget about it.
2.  My record of NJP's/Article 15's indicate only isolated or minor offenses.
3. I received letters of recommendation.
4.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.
5.  The following issues are the reasons I believe my discharge should be up graded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.
6.  I was informed by my family in the early part of 1994, that my presence was needed to assist in the aid of my ill mother.  I sought advice from the ships Chaplain and he advised me to seek a hardship discharge.  Upon his advice, I pursued the hardship discharge but eventually it was not approved.  This proved to create a lot of mental stress on me, knowing that I could not come to the aid of my ill mother who was diagnosed with cancer.
7.  All NJP's were served and paid for in full during my active duty status.  The NJPs were all isolated or minor offenses.
8.  During my tour, I recieved a "Letter of Commendation", (2) Letters of Appreciation.  I also passed the advancement testing in good fashion.  Due to quota limitations, I did not advance.  I received the National Defense Service Medal.

Documentation

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

Applicant's microfiche service record
DD Form 149
Copy of requirement for hardship or dependency discharge
Letter from applicant
Hand written not from Chaplain
Statement from applicant to Commanding Officer dated April 1994
List of monthly expenditures
Note from attending physician dated April 7, 1994
Letter from Student Empowerment Coordinator
Letter from Department of Health and Human Services re: Social Security Benefits dated April 1, 1994
Copy of social security data for applicant's father
Copy of five bills
Copy of notice of review determination dated January 4, 1994 for applicant's parents
Copy of receipt dated March 5, 1994
Letter from applicant's mother
Letter from a close family friend
Letter from a friend of over 20 years
Thirteen pages from applicant's service record
DD Form 180
Copy of applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920109 - 920421	COG

Period of Service Under Review:

Date of Enlistment:  920422		Date of Discharge:  950112

Length of Service (years, months, days):

	Active:    02  08  21
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.70 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  3

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:

930223:	NJP for violation of UCMJ, Article 91 (2 specs): Willful disobedience of a petty officer, (2) Disrespect toward a petty officer, violation of UCMJ, Article 117: Provoking speeches, violation of UCMJ, Article 134: Drunk and disorderly.
	Award: Forfeiture of $457 per month for 1 month, restriction and extra duty for 30 days, reduction to MSSA.  No indication of appeal in the record.

930223:	Retention Warning from USS DUBUQUE (LPD-8):  Advised of deficiency (Disobeying the orders of two petty officers, one being a duty master at arms and also being disrespectful to both petty officers.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931028:	NJP for violation of UCMJ, Article 86 (2 specs): Absence from unit.
	Award: Forfeiture of $200 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

931028:	Retention Warning from USS DUBUQUE (LPD-8):  Advised of deficiency (Recent nonjudicial punishment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940713:	NJP for violation of UCMJ, Article 134: Unlawful entry.
	Award: Forfeiture of $511 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

941018:	USS DUBUQUE (LPD-8) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by enlisted service record.

941018:  	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.

941101:	Psychiatric evaluation: Diagnoses: Axis I: Adjustment disorder with depressed mood-resolve.  Axis II: Status post attempted suicide by hanging.

941115:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim): MSSN (applicant's) has been a disciplinary problem since he came onboard.  He consistently causes trouble within his respective division and persists upon rebelling against established authority consummated by his flagrant violations of the UCMJ.  He is beyond the assistance of the chain of command and has responded negatively to all assistance offered him from various supporters within his workcenter and the command.  His conduct and influence within the junior ranks will not be tolerated.
	While being processed for Administrative Separation MSSN (applicant) was involved in an altercation in the local community wherein a stabbing incident took place with a locally based Lance Corporal H_, Marine Barracks, Fleet Activities. Sasebo. Japan, 22 October 1994. The Naval Criminal Investigative Service conducted an investigation and found witnesses established that the suspect, MSSN (applicant), was intoxicated and argumentative with the victim, LCPL H_.  Witnesses additionally confirm that prior to the victim's, LCPL H_, assault, the suspect, MSSN (applicant) attempted to stab/strike another individual working at the club "JUICE," but was restrained by friends.
	Following the afformentioned stabbing incident MSSN (applicant) attempted to commit suicide by hanging himself, 24 October 1994.  MSSN (applicant) was immediately flown to the U.S. Naval Hospital in Okinawa, Japan where he was evaluated and observed for a period of 8 days. He was diagnosed as not being suicidal and basically wanted to get out of the Navy and get on with his life, enclosure (11).
	With respect to MSSN (applicant's) past and present disciplinary problems, I strongly recommend immediate separation from the naval service and that separation he characterized as Other Than Honorable.

941202:	Applicant to unauthorized absence 0645, 2Dec94.

941205:	Applicant from unauthorized absence on 0645, 5Dec94 (3 days/surrendered).

950105:	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 950112 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 and 6.  The applicant states that he applied for a hardship discharge to assist his ill mother and the discharge was denied.  The Board determined that denial of the applicant’s hardship discharge has no bearing on the misconduct he committed and for which he was subsequently discharged.  This issue has no merit.  The discharge was proper and equitable.  Relief denied.

Issues 2, 3, 7 and 8.  While the applicant considers his record of offenses to be minor and isolated, the Board found his record constitutes a well established pattern of misconduct. A characterization of service of 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 receipt of commendatory awards and favorable performance and conduct evaluations during the applicant’s tour does not guarantee him an honorable discharge.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions and adverse counseling entries on other occasions.  The record of offenses the applicant commits during his enlistment forms a substantial part of the basis for determining the characterization of service, irregardless of whether or not the applicant was fined, reduced in rank, restricted, or otherwise punished for the offenses.  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.

Issue 4.  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 adverse consequences subsequent to leaving the service.  Therefore, the Board determined this issue has no merit.  Relief is denied.

Issue 5.  The board found the evidence the applicant presented was insufficient to override the presumption of regularity and does not warrant an upgrade to his discharge.  The specific reasons for denial of relief are set forth in the discussion of the issues listed in this section of the Decisional Document.
The following is provided for the benefit of the applicant.  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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), 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