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

 ex-SA, USNR
Docket No. ND01-01053

Applicant’s Request

The application for discharge review, received 010807, 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 020619.  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.

The NDRB did note an administrative error on the original DD Form 214.  Block 12a, Dated Entered AD This Period should read: “91  SEP  05” vice “91  SEP  11”, Block 12c, Net Active Service This Period should read: “04  05  25” vice “04  05  19”, Block 12e, Total Prior Inactive Service should read: “00  03  19” vice “00  03  18”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I believe that my discharge inequitable because I was proven innocent in court martial for one of two rape charges, and immediately after the court martial they offered a deal which was signed for an other than Honorable Discharge they would discharge me that week.  So, I was so frustrated behind 4 years of was to be proven innocent I signed for the discharge so that I could get on with my life, While stationed on N.A.S. Pensacola my chain of command all knew about my case and did not keep it private instead they violated my privacy and right which caused me to suffer much prejudice.
The first case "D_" she popped up positive on a drug called "crystal meth".  The Navy had no case on me instead they wasted my time and did not give a chance to prove my innocence.

Documentation

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

Statement of service in the Armed Forces of the United States from the Department of Veterans Affairs dated June 18, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  910516		Date of Discharge:  960229

Length of Service (years, months, days):

	Active:    04  05  25
	Inactive:  00  03  19

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  63

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (2)	Behavior:  3.00 (2)		OTA:  3.10

Military Decorations:  None

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

Days of Unauthorized Absence:  6

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:

920716:	NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $392.85 per month for 1 month, restriction for 30 days, reduction to SR.  Reduction suspended for 6 months.  No indication of appeal in the record.

930805:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 21 days.  No indication of appeal in the record.

930922:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $100 per month for 2 months, restriction for 21 days.  No indication of appeal in the record.

931027:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $50 per month for 1 month, extra duty for 5 days.  No indication of appeal in the record.

940919:	NJP for violation of UCMJ, Article 86 (5 specs): Unauthorized absence.
	Award: Forfeiture 1/2 pay per month for 1 month, restriction for 30 days, reduction to SA.  Forfeiture suspended for 90 days.  No indication of appeal in the record.  No further information found in service record.

941026:	NJP for violation of UCMJ.  No further information found in service record.  [Extracted from Enlisted Performance Record]

960229:	DD Form 214: Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960229 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 applicant’s issue discusses a court martial of which the Board has no record.  The applicant was discharged for a pattern of misconduct.  The applicant provided no documentation to support his allegation that he was unfairly treated.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor. The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on six occasions.  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.

The applicant’s discharge characterization accurately reflects his service to his country.  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 is evident 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 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