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

 ex-SR, USN
Docket No. ND02-00316

Applicant’s Request

The application for discharge review, received 020128, 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 020829.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no inequity in the characterization of the Applicant’s service.  However, the discharge was processed with an improper reason code.  The Board’s vote was unanimous that the character of the discharge shall not change, but the reason shall change to reflect Best Interest of the Service (BIOTS), Separation code (JFF).  The discharge shall change to: GENERAL UNDER HONORABLE CONDITIONS/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly 3630900).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I have been a good citizen since discharge.

2.  My record of NJP's/Article 15's indicates only isolated or minor offenses.

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

4.  The punishment I got at discharge was too harsh.  It was much worse that most people got for the same or similar offense. 

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:  USN 			None
	Inactive: USNR (DEP)	951120 - 960909	COG

Period of Service Under Review:

Date of Enlistment:  960910		Date of Discharge:  980518

Length of Service (years, months, days):

	Active:    01  08  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  77

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

970724:	Disciplinary Investigative Board recommended applicant security clearance be pulled, remove his designator, put him in desk as an-E-2, restriction 15/15, 1/2 months pay suspended for 6 months.

970801:	NJP for violation of UCMJ, Article 107: False statement, violation of UCMJ Article 134: Altered ID Card.
Award:  Restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

980312:	Disciplinary Investigative Board recommended by a vote of 3 to 0 that the applicant be separated with a General discharge (suspended for 12 months).

980314:	NJP for violation of UCMJ, Article 80: Attempt, (Altering Military ID Card); violation of UCMJ Article 134: Wrongful possession of an official government pass (photo copy).
Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.
Note:  No evidence of NAVPERS 1070/613 warning documented in the official record.

980502:	Disciplinary Investigative Board recommended that this case be forwarded to the Commanding Officer's NJP.  After reviewing all statements, the DRB feels that F_ has no future in the United States Navy based on pattern of misconduct. (This is strike three.)  If found guilty of these charges, DRB recommends, he be considered for other than honorable (OTH) discharge.  No other additional action recommended.

980507:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Dereliction of duty.
Award:  Restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

980512:	Applicant notified of intended recommendation for discharge, general under honorable conditions, by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

980512:  	Applicant advised of his rights and having elected 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 

980521:	Commanding Officer recommended 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.  Commanding Officer’s verbatim comments: [Seaman Recruit F_ (Applicant’s) performance and conduct has been contrary to good order and discipline.  He has shown little regard for his duties and responsibilities, and has been unresponsive to his chain of command’s efforts to mentor him.  Seaman Recruit F_ (Applicant) has shown neither the desire nor the aptitude for continued naval service.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980518 with a discharge characterization of general under 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 equitable but improperly processed due to processing for a pattern of misconduct without a NAVPERS 1070/613 warning documented in the official record (A, B, C and D).  Therefore, the Separation Code shall change to JFF and the Narrative Reason for Separation shall change to Secretarial Authority.

Issue 1:  The Applicant requested clemency for being a good citizen since his discharge.  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, a positive 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 upon post-service conduct.  The applicant did not provide any of these documents.  Relief denied.

Issue 2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  Although the Board discerned an impropriety in the processing of the Applicant’s discharge, it is the unanimous decision of the Board that the characterization of service was equitable and shall remain general under honorable conditions.  The Board disagrees with the Applicant’s claim that his record of NJP’s indicates only isolated or minor offenses.  The Applicant’s service is marred by award of non-judicial punishment (NJP) on three occasions.  The Applicant’s misconduct spans a period of several months and includes the same charge on two occasions.  Making false official statements, altering a Military ID Card, wrongful possession of an official government pass, unauthorized absence and dereliction of duty are offenses punishable under the UCMJ and can be cause for a dishonorable or bad conduct discharge when Special Court Martial proceedings are convened.  Relief partially warranted.

Issue 3:  The Board found the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrate 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 denied.

Issue 4:  The board disagrees with the Applicant’s assertion that his discharge characterization was too harsh.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  It must be noted that most Sailor’s serve honorably and well and therefore earn honorable discharges.  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 a fully honorable characterization of service.  An upgrade to honorable would be inappropriate.  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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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