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

 ex-FR, USN
Docket No. ND02-00185

Applicant’s Request

The application for discharge review, received 011227, 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 received an OTH discharge for missing my ships movement, I did this to try and catch my wife cheating.  I did catch her cheating, but this action landed me in the brig with an OTH discharge.  After my discharge we were divorced.

2.  I know what I did was wrong, but I realized that at that time in my life I was still an irresponsible kid, and did not fully realize what the consequences of my actions would be.

3.  I have since remarried and have two wonderful children.  I am a good law abiding citizen, who works hard, votes, and pay his taxes.  My family has a strong military history and I would really like my record cleared so I to can be proud.

4.  Another reason I would like my discharge changed is that due to recent events, If I were ever called upon to defend my country, home and my family, I would like to be able to do so.  Thank you.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	921002 - 930308	COG

Period of Service Under Review:

Date of Enlistment:  930309		Date of Discharge:  941231

Length of Service (years, months, days):

	Active:    01  07  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (1)	Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  43

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:

940111:	Retention Warning from [USS CONSTELLATION (CV-64):  Advised of deficiency (UCMJ Article 86, UA from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940111:	NJP for violation of UCMJ, Article 86: (4 Specs), UA from appointed place of duty on 931116, UA from unit from 0600, 931026 until 0700, 931027 (1day/S), From 931205 until 931209 (4days/S), and from 940101 until 940105 (4days/S).
Award:  Forfeiture of $416.00 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940516:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit on or about 940215 to 940218 (3days/S), 940404 to 940405, 940409 to 940412 (3days/S), 940419 to 940424 (5days/S), 940425 to 940426 (1day/S), 940427 to 940428, violation of UCMJ Article 107: False official statement on or about 940404.
Award:  Forfeiture of $466.00 per month for 1 month, restriction and extra duty for 20 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

940831:	Punishment of reduction in rate to ICFR suspended at CO's NJP of 940516 vacated due to continued misconduct.

940921:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: (2 Specs), UA from 940717 until 940719 (2days/s); UA from 940803 until 940823 (20days/S); Charge II: violation of the UCMJ, Article 87: Miss the ship's movement on or about 940810 through design.
	Finding:  to Charge I and 2, and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days.
	CA action 941002:  Sentence approved and ordered executed.
	
941031:	USS CONSTELLATION (CV-64) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your violation of the UCMJ, Article 107, make an false official statement on 940404; and Article 87, miss the ship's movement on 940810, and by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment and as evidenced by three or more unauthorized absences or over three days duration in your current enlistment.

941101:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

941203:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.
 
941228:	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 941231 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).

The Applicant presented a number of issues in his request:

Issue 1:  The Applicant states he had marital problems that resulted in his misconduct.  The NDRB recognizes that serving in the U.S. Navy is challenging and places great strains on families.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn honorable discharges.   In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The Applicant's service was equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

Issue 2:  The Applicant in his second issue argues he was young, irresponsible and did not realize the consequences of his actions.  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 requirement 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.  The Applicant was notified of the negative impact a discharge under other than honorable conditions may have on him post-service.  He elected to waive all of his rights and receive an other than honorable discharge.  Relief on this basis is denied.

Issue 3:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The Applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to exist during the period of enlistment in question.  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.  Applicant did not provide any documentation.  Relief not warranted.  

Issue 4:  The Applicant has requested to have his discharge upgraded so that he may one day re-enlist to defend his country.  Reenlistment is not based upon characterization of service, but the discharge code issued at the time of separation from the naval service.  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.  Reenlistment policy is promulgated by the Chief of Naval Personnel.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, on this basis is therefore, denied. 

Finally, 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.  The Applicant can provide additional documentation to support any claims of an error or injustice that occurred during his processing.  In addition, the Applicant can present any evidence of post-service accomplishments at the personal appearance hearing.  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