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

ex-SMSA, USN
Docket No. ND02-00173

Applicant’s Request

The application for discharge review, received 011211, 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 020731.  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, as submitted

1.  I probably won't receive the upgrade due to the fact that I didn't appear before the board.  I probably won't receive the upgrade because I didn't provide enough documents.  The whole point is this I come in the Navy when i was 20 yrs old.  Granted I've made some stupid decisions in my life.  I'm 29 yrs old now.  I came out in 94 when I was 21.  It's been 7 1/2 years I've learned a lot since then.  Believe it or not maturity has kicked in.  I can't worry about what other people did or got away with.  Even though I still think a lot of it was unfair.  But I can only be accountable for my actions.  All I want is an RE-3.  That doesn't get me back in the Navy.  But it's nice to know that the choice would be mine if I wanted to take the test and go back in.  35 is the cut off age.  I didn't want a hearing just to say the same thing in person that I'm saying in this letter.  All I want is a second chance.  Short and to the point.

2.  I (Applicant) think my discharge is unfair due to the fact yes I may have my share of trouble.  But their were numerous occasions where other sailors received little or no punishment at all for their actions of greater or same offenses.  Their were sailors who threw other sailors off of the liberty boat in Egypt in front of other crew members.  These sailors received no punishment for their actions. I guess it helps when your friends with the captain.  I know of a sailor who went to XOI for the same offense as me.  Late for general quarters he got off with no punishment.  I on the other hand ended up on restriction.  I accept full responsibility for my assault with a deadly weapon charge.  I could have been discharged.  But he knew it was self defense so he gave me restriction along with the other sailor.

3.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

4.  I received awards and decorations.

5.  I have been a good citizen.

6.  My ability to serve was impaired by my youth and immaturity.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930412 - 930414	COG

Period of Service Under Review:

Date of Enlistment:  930415		Date of Discharge:  940922

Length of Service (years, months, days):

	Active:    01  05  08
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.00 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NER, NDSM, SASM with Bronze Star

Days of Unauthorized Absence:  None

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:

940107:	NJP for violation of UCMJ, Article 91: Disrespect to a superior Petty Officer on 5Jan94, violation of UCMJ, Article 128: Assault on 5Jan94,violation of UCMJ, Article 134: Communicating a threat on 5Jan94.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940203:	NJP for violation of UCMJ, Article 92: Dereliction of duty on 2Feb94.
	Award: Forfeiture of $200 per month for 1 month, restriction for 15 days.  No indication of appeal in the record.

940204:	Retention Warning from USS UNDERWOOD (FFG 36):  Advised of deficiency (Repeated violations under the Uniform Code of Military Justice.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940217:	NJP for violation of UCMJ, Article 128: Assault, aggravated with a dangerous weapon.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940826:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $466.65 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

940825:	USS UNDERWOOD (FFG 36) 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 all punishments under the UCMJ in current enlistment.

940827:	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.

940830:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

940915:	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 940922 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).

Issues 1 & 6:  The NDRB provides the same fair and impartial review to each case whether the Applicant attends a personal hearing or not.  The Applicant's case was reviewed in its entirety based upon all available records.

The Board found the Applicant's age, education level, and test scores qualified him for enlistment.  While he may feel his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated he was unfit for further service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  The reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

Issue 2:  The Applicant contended his discharge was inequitable because other sailors committed similar or the same offenses and "got off."  Each case is reviewed on its own merits.  The summary of service clearly documents the pattern of misconduct for which the Applicant was discharged.  Relief denied.

Issues 3 & 4:  The receipt of commendatory awards and favorable performance evaluations during the Applicant’s service does not guarantee him an honorable discharge.  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 that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

Issue 5:  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.  While the applicant states he has been a good citizen, 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, and certification of non-involvement with civil authorities, 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.  Relief denied.

The Applicant is reminded 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.  A personal appearance is highly recommended.  The Applicant can provide additional documentation to support any claims of an error or injustice that occurred during his separation processing.  In addition, the Applicant can present any evidence of post-service accomplishments at the personal appearance hearing.  Legal representation at a personal appearance hearing is 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