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

 ex-FR, USN
Docket No. ND02-00134

Applicant’s Request

The application for discharge review, received 011029, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701.  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, as submitted

1.  Dear Sir/Madam,

Ladies and Gentlemen of the Board, I would first like to thank you for giving me the opportunity to express my deepest apology for my mischievous conduct during my tenure in the United States Navy.  I deeply regret my behavior, which consequently led to my separation from the United States Navy with an "Other than Honorable" discharge.  It has been 10 years and I can truly say, "I have paid, learned, and repented for my mistakes that took place back then and I would like to bring an end to the penalty that has followed me since".  In other words, I am requesting that the Board upgrade my discharge since I have upgraded my life.

Since my separation from the Navy, I have maintained a consistent work history.  Currently, I am employed with Remax One Realty Company as a Real Estate Agent.  I also along with my father since 1995 have established a home improvement company.  I am an honest hard-working young man.  Many would attest to my excellent interpersonal skills and my love, care, and concern for people.  I am a team leader who counsels young children in the community.  I attend church on a regular basis with my family.  It has contributed significantly to my knowledge of what it takes to become a responsible honorable man.  Another key factor that has inspired me to continue on and strive for excellence was the birth of my two children, A_ T_ P_ and K_ L_ P_ Jr. I also recently was married to D_ M_ P_, on December 29, 2000.  I plan to provide my wife and kids with a bright and prosperous future.

Whereas I once was a boy, now I am proud to say I am a man.  I am a firm believer that everyone must be held accountable for his or her actions.  I also believe that everyone should be entitled to reconciliation to make amends and learn from their mistakes and I have.  I am requesting the Board to consider my plea, and upgrade my "Other than Honorable" discharge to an "Honorable" discharge.

I really hope that upon your review of my request for the upgrading of my discharge that you, the Board, find it in your heart and minds to believe that I have learned from my mistakes and whereas I was once looked upon as a liability now I am an asset to society.

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appeallant of an upgrade of his Under Other Than Honorable Conditions discharge, to that of Honorable, allowing for equitable relief.

The records reflect the FSM served in the United States Navy from August 30, 1989 to September 18, 1991, with a narrative reason for separation as Misconduct, commission of a serious offense.  We believe that based on the good service that the FSM did have, and the high performance marks that he received of 3.8 and referrals to promotion that a General, Under Honorable Conditions maybe more appropriate for this instant case.

On the FSM's application he notes responsibility for his inappropriate actions and took responsibility for them at his hearing on active duty.  The record reflects that he was a 3.8 sailor and that of the non-judicial punishment received three times, each was for a different offense.  Therefore, he was learning from his mistakes, with counsel at that time maintaining then as this service does now, entitlement to a General discharge.

In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration, that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations, with additional consideration given to a change of the current UOTHC discharge to that of a General, Under Honorable conditions.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.   Respectfully,

Documentation

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

Character reference from applicant's wife dated September 13, 2001
Character reference dated September 10, 2001
Character reference from applicant's father dated August 20, 2001
Character reference from K_ P_, Remax One Realty
Character reference from B_ R_, Remax One Realty
Character reference from CEO of Hogan Enterprises
Character reference from applicant's mother dated July 19, 2001
Character reference dated July 27, 2001
Character reference dated July 19, 2001
Character reference dated July 27, 2001
Character reference dated July 5, 2001
Character reference from applicant's step-mother dated July 3, 2001
Character reference from pastor dated June 27, 2001
Character reference dated July 9, 2001
Character reference from minister dated July 5, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881201 - 890824	ELS
		   USNR (DEP)	890830 - 890904	COG

Period of Service Under Review:

Date of Enlistment:  890905		Date of Discharge:  910918

Length of Service (years, months, days):

	Active:    02  00  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (3)	Behavior:  2.70 (3)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

900312:	NJP for violation of UCMJ, Article 121: Wrongful appropriation of a value of about $8.33 on 24Feb90.
	Award: Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

900814:	NJP for violation of UCMJ, Article 86: Unauthorized absence for approximately 4 hours on 6Aug90.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

900906:	Retention Warning from USS CAPODANNO (FF 1093):  Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910321:	NJP for violation of UCMJ, Article 92:Violate a lawful general regulation on 15Mar91, to wit: U.S. Navy regulation Article 1137 of 1990, to wit: to report all knowledge of crimes, by wrongfully failing to report a knowledge of a crime.
	Award: Forfeiture of $376.95 per month for 2 months, restriction for 60 days, reduction to FR.  No indication of appeal in the record.

910322:	USS CAPODANNO (FF 1093) 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.

910401:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910411:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a commission of a serious offense and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910521:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments: FR P_ is a severe detriment to the Capodanno.  His continued presence aboard is prejudicial to good order and discipline.  He has involved himself in criminal activities which tarnish the reputation of the United States Navy.  FR P_ admitted during testimony at the administrative board that he had committed a serious offense by carrying a concealed weapon (handgun) while on liberty.  He indicated that he understood all of his rights under Article 31, UCMJ before he made this statement.  FR P_ has no potential for further service and he should be discharged immediately with an other than honorable discharge.

910627:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910724:	BUPERS granted authority to hold discharge in abeyance pending completion of GCM in which applicant is key witness.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910918 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 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 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.  Relief denied.

Issue 2.  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 three occasions and adverse counseling entries 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 the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The applicant 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, 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