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

 ex-RMSR, USN
Docket No. ND02-00422

Applicant’s Request

The application for discharge review, received 020221, 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 021029.  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.  As a member of the USS STERETT (CG-31) I saved my shipmate's and one of my superior officers life.  Yet I wasn't recognized nor honored for my bravery.  I submitted newspaper clippings of the incident and problems aboard my ship.  My undesirable discharge was improper because all the charges against me and the 3 years I spent in the military didn't deserve this type of discharge.  I would like to discuss all the charges that was brought against me also I'm requesting that my undesirable discharge be upgraded to an honorable discharge.

2.  Issue submitted by Disabled American Veterans letter dated May 14, 2001

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 support the contentions as set forth by the applicant, in his request that he be given the opportunity to up grade his Under Other Than Honorable Conditions Discharge to a Honorable Discharge.

The (FSM) joined the United States Naval Service on November 27 1990 until June 07 1993 he served and was cited with several Major-judicial punishments for the better part of his military career a total of over (2) years and (6) months.  During his military tenure he performed and received several notices of acclaim and was also rated as a good to excellent sailor.  The (FSM) was also trained and cited as a knowledgeable expert in the field of Radio Communications by his superiors.

The (FSM) seeks now to up-grade his discharge in an effort to better serve his country again in becoming a State Law Enforcement Trooper in Florida.  The (FSM) sincerely hopes that by respectfully requesting and being granted a Honorable Discharge from the Navy, he states this is a high matter of Honor and Respect.  The (FSM) also states he had always tried to achieve Honor and Respect while on active duty in the Naval Service just look at his news-paper articles and other service achievements of note.  We respectfully request that the (FSM) be given the complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct his youthful and immature behavior he demonstrated in prior service.

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.

Documentation

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

Copy of DD Form 214
Character reference dated August 15, 1994
Character reference dated August 16, 1994
Letter to Applicant from Union-Tribune Publishing Company dated July 1, 1992
Thirty-five pages from Applicant's service record
Newspaper article dated June 26, 1992
Newspaper article from The San Diego Union-Tribune
Letter to editor signed a dependent with no one to depend on.
Newspaper article (2 pages)
Letter from Disabled American Veterans dated January 23, 2002
Letter from Disabled American Veterans dated November 16, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	901119 - 901126	COG

Period of Service Under Review:

Date of Enlistment:  901127		Date of Discharge:  930607

Length of Service (years, months, days):

	Active:    02  06  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.40 (2)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  7

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:

911205:	NJP for violation of UCMJ, Article 86 (5 specs): Absence from unit, organization or place of duty.
	Award: Correctional custody for 30 days, reduction to RMSA.  No indication of appeal in the record.

911206:	Retention Warning from [USS STERETT (CG-31)]:  Advised of deficiency (Personal behavior that is below acceptable standards.  Specifically - violation of the Uniform Code of Military Justice Article 86 - Absence from unit, organization or place of duty; (5 specifications), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920220:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 107: False official statements.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to RMSR.  No indication of appeal in the record.

920313:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 134.
	Specification: Breaking restriction.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $500.00, confinement for 30 days.
	CA action 920313:  Sentence approved and ordered executed.  Confinement for 20 days and forfeiture of $400.00 suspended effective 18Mar92.

920323:	Applicant released from confinement.

930212:	NJP for violation of UCMJ, Article 92: Violation or failure to obey lawful general order or regulation.
	Award: Forfeiture of $150 per month for 1 month.  No indication of appeal in the record.

930511:	USS STERETT (CG-31) notified Applicant of intended recommendation for discharge by reason of misconduct due to commission of serious offenses and misconduct due to a pattern of misconduct as evidenced by violations of the UCMJ, article 92 - failure to obey a lawful general order and article 107 - false official statement, three Commanding Officer's non judicial punishments and one summary courts-martial.  If separation approved by the Chief of Naval Personnel, the characterization of service may be under other than honorable conditions.

930511:	Applicant advised of his rights and having consulted 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.

930511:	Commanding Officer, USS STERETT (CG-31) recommended a general discharge by reason of misconduct due to commission of serious offenses and misconduct due to a pattern of misconduct.  Commanding Officer’s Comments (verbatim):  [RMSA W_ (Applicant) has been attached to the USS STERETT since July 1991.  During his 22 months onboard, RMSA W_ (Applicant) has infrequently demonstrated potential for advancement.  His problems centered on an inability to apply himself professionally.  RMSA W_ (Applicant) was disciplined for short periods of unauthorized absence and involvement in situations that should have been avoided.  As evidenced by his last evaluation in which he received an overall 3.6.  There were positive periods in RSMA W_ (Applicant) service.  RSMA W_ (Applicant) once talked a distraught shipmate, who was in an armed confrontation with city police, into surrendering himself, unfortunately, the impact from the minor offenses outweigh RMSA W_ (Applicant) contributions, therefore the characterization of service as general is strongly recommended.]
	
930519:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930605:	NJP for violation of UCMJ, Article 92: Violation or failure to obey other lawful order.
	Award: Confinement with bread and water for 3 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930607 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 asserts that his discharge was improper because he served for three years and he did not deserve this type of discharge.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents the Applicant’s pattern of misconduct and willful disregard for the requirements of military discipline and demonstrated he was unfit for further service The Applicant’s service of two years, six months and 11 days is marred by award of non-judicial punishment on four occasions as well as a Summary Court Martial.  Under other than honorable conditions most clearly describes the Applicant’s character of service.  Relief denied.

Issue 2:  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, a positive employment record, documentation of community service, 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 post-service documentation submitted by the Applicant included two character references from 1994.  This evidence provided by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based upon post-service conduct is not warranted.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 5, effective 05 Mar 93 until 21 Jul 94), 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