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

 ex-AMSAA, USN
Docket No. ND02-00054

Applicant’s Request

The application for discharge review, received 011002, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020604.  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

1.  (Equity Issue) This former member avers that he regrets his misconduct of record, has learned from his mistakes and would now like to reenter the military.  On this basis, he petitions the Board’s relief.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Letter from applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890921 - 890925	COG

Period of Service Under Review:

Date of Enlistment:  890926		Date of Discharge:  920320

Length of Service (years, months, days):

	Active:    02  05  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  AMSAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  3.30 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, BER, JMU, SASM with Bronze Star, NDSM, SSDR (2)

Days of Unauthorized Absence:  None
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:

900104:	NJP for violation of UCMJ, Article 92: Fail to obey lawful order issued by CO, RTC, San Diego on 6Dec89 by wrongfully wearing civilian clothes, violation of UCMJ, Article 128: Unlawfully strike AR in the left eye with fist on 6Dec89, violation of UCMJ, Article 134: Drunk and disorderly on 6Dec89.
	Award: Forfeiture of $323 per month for 2 months.  No indication of appeal in the record.

900104:	Retention Warning from Recruit Training Command, Naval Training Center, San Diego:  Advised of deficiency (Failure to obey other lawful written order, assault, disorderly conduct and drunkenness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910610:	NJP for violation of UCMJ, Article 86: Absence from unit on 0730-1230, 14May91, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Forfeiture of 1/2 pay per month for 2 months, confinement on bread and water for 3 days, reduction to AMSAR  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

911017:	Retention Warning from Air Anti-Submarine Squadron 31:  Advised of deficiency (Absence from unit and failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920204:	NJP for violation of UCMJ, Article 91: Disobeying a senior petty officer, violation of UCMJ, Article 92: Disobeying a lawful order.
	Award: Forfeiture of $440 for 2 months, oral reprimand, restriction and extra duty for 45 days, reduction to AMSAA.  No indication of appeal in the record.

920216:	Air Anti-Submarine Squadron 31 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 three nonjudicial punishments under your current enlistment.

920217:  	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.

920224:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

920304:	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 920320 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 states that the applicant regrets his misconduct, learned from his mistakes and now would like to reenter the service.  His remorse and desire to return to the Naval Service are not reasons for which the Board will grant relief.  The applicant failed to demonstrate that there was an impropriety or inequity in the discharge he received or that he is a person of good character and conduct and deserves an upgrade based on his post-service conduct.  Accordingly, relief is denied.

Issue 2 sites the applicant’s post-service conduct as reason to upgrade his discharge characterization.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which allows an unfavorable discharge to be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have occurred during the discharge process for the period of enlistment in question.  No such error occurred in this case.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate that he is a person of good character and conduct, deserving of an upgrade to his discharge characterization.  The Board determined the discharge was proper and equitable.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided that an application is received at the NDRB within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended but not required.
 
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