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

 ex-MSSN, USN
Docket No. ND02-00386

Applicant’s Request

The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to honorable or under honorable conditions (general).  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 021010.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the Applicant’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Request upgrade of Under Other Than Honorable to honorable feels discharge was too harsh for the infraction and request equitable relief.

2. As the representative, we request consideration of upgrade of the current Under Other Than Honorable to that of General, Under Honorable Conditions, with consideration to equitable relief for post service activities, that will be discussed in hearing.

Documentation

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

Statement from Applicant dated January 11, 2002
Fifteen pages from Applicant's ARNG record
Two pages from Applicant's Navy service record
Copy of correctional officer notice of examination score dated April 30, 1999
Copy of notification of examination score dated April 13, 1999
Copy of certificate dated December 15, 1993
Character reference dated October 10, 2001
Character reference dated January 17, 2002
List from Applicant
Character reference dated September 18, 2001
Character reference from S_ M. H_
Job/character reference from J_ G_
Job/character reference dated July 28, 2001
Four US Army certificates of course completion
Copy of academic record from Vincennes University
Copy of transfer transcript
Copy of institutional transcript
Copy of Dantes Score Report
TADLP enrollment history (6 pages)
Award recommendation for a Certificate of Achievement, undated
DA Form 705, June 1998, Army Physical Fitness Test Scorecard, August-September 2002
Certificate of Appreciation for period of 1-15 June 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900131 - 900426	COG

Period of Service Under Review:

Date of Enlistment:  900427			Date of Discharge:  921002

Length of Service (years, months, days):

	Active:    02  05  06
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  51

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (4)			Behavior:  3.15 (4)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LOA, NUC

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:

900614:	NJP for violation of UCMJ, Article 128: Assault SR by bumping into him and striking at him with closed fist and by saying "I will kick your ass!" on 9Jun90, violation of UCMJ, Article 134: Wrongfully communicate to SR a threat to injure by saying "I'll kick your ass!” on 9Jun90.
	Award: Forfeiture of $200 per month for 1 month.  No indication of appeal in the record.

900614:	Retention Warning from Recruit Training Command, Naval Training Center, San Diego, CA:  Advised of deficiency (simple assault and communicating a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920609:	NJP for violation of UCMJ, Article 86:  Unauthorized absence on 4Jun92.
	Award: Restriction and extra duty for 7 days.  No indication of appeal in the record.

920610:	Retention Warning from USS DEFENDER (MCM-2):  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920630:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 27Jun92.
	Award: Restriction and extra duty for 21 days, reduction to MSSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

920820:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence on 29Jul92, (2) Unauthorized absence on 31Jul92, (3) Unauthorized absence on 5Aug92, (4) Unauthorized absence on 7Aug92.
	Award: Restriction and extra duty for 30 days, reduction to MSSA.  No indication of appeal in the record.

920820:	USS DEFENDER notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920820:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920827:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): Since reporting on board DEFENDER MSSA (Applicant) has been a continuous administrative and disciplinary burden.  Provided the opportunity to pursue his naval career in a highly positive environment in his chosen rating, he has adopted the attitude that Navy standards clash with his own and his plans for the future.  Although his disciplinary infractions are generally minor in nature they are so repetitive that they are indicative of a conscious refusal to conform and his explanations place blame on every entity and circumstance but himself.  His manipulative, dissenting attitude has had a negative impact in each workcenter that he has been assigned to and has caused serious problems throughout the crew.  I most strongly recommend that he be separated from the naval service as expeditiously as possible.

920917:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

941207:	NDRB documentary record review Docket Number ND94-00132 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 921002 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 but not equitable (C and D).

Issues 1 and 2.  The Board found that the Applicant’s service to his country after his discharge sufficiently mitigated his pattern of misconduct while in the U.S. Navy to warrant an upgrade of his characterization of service to under honorable conditions (general).   However, commanders and separation authorities are tasked to ensure that sailors receive no higher characterization than is due.  While the Board found the Applicant’s post service conduct to be commendable, the Board determined that the Applicant’s record of service does not support an upgrade to Honorable.

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