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

 ex-MSSR, USN
Docket No. ND02-00480

Applicant’s Request

The application for discharge review, received 020311, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021104.  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.  (Equity Issue) This former member  proffers that his attention deficit disorder contributed to and sufficiently mitigated his misconduct of record to warrant recharacterization of his service period.

2.  (Equity Issue) This former member further request that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of applicant's DD Form 214
Letter from National Personnel Records Center dated December 24, 2001
Statement from applicant dated October 21, 2001
Character reference dated October 16, 2001
Character reference dated October 21, 2001
Copy of California Achievement Tests dated April 27. 1989 (2 pages)
Copy of grade report dated April 12, 1990
Copy of results of math test dated February 15, 1990
Copy of prescriptive report for graduation competency tests dated February 15, 1990
Copy of Graduation Competency Tests Report dated March 19, 1990

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900827 - 910722	COG

Period of Service Under Review:

Date of Enlistment:  910723		Date of Discharge:  941212

Length of Service (years, months, days):

	Active:    03  04  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.20 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with 2 Bronze Stars, SSDR with Bronze Star, MUC

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:

920914:	NJP for violation of UCMJ, Article 121 (2 specs): Wrongful appropriation of a shipmate's property on Jun92 and Aug92.
	Award: Forfeiture of $392 per month for 2 months, restriction for 45 days, reduction to MSSR.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

930416:	NJP for violation of UCMJ, Article 92: Dereliction of duty by sleeping while on fire watch.
	Award: No further information found in service record.  [Extracted from CO's message dated 15Nov94.]

930515:	NJP for violation of UCMJ, Article 92: Willfully disobeyed a lawful order by wrongfully missing seven restricted musters between 22Apr93 and 9May93.
	Award: Restriction for 14 days.  No indication of appeal in the record.

940205:	NJP for violation of UCMJ, Article 134: Wrongfully and falsely forge a liberty card on 28Dec93.
	Award: Forfeiture of $200 per month for 2 months, confinement on bread and water for 3 days.  No indication of appeal in the record.

940909:	NJP for violation of UCMJ, Article 91: Willful disobedience of chief petty officer.
	Award: No further information found in service record.  [Extracted from CO's message dated 15Nov94.]

940909:	Retention Warning from [USS HARRY W HALL (DD 986)]:  Advised of deficiency (Violation of UCMJ Article 91, Willful disobedience of a chief petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from CO's message dated 15Nov94.]

941103:	Vacate suspended reduction to MSSA awarded at CO's NJP dated 9Sep94 due to continued misconduct.

941104:	NJP for violation of UCMJ, Article 86: Absence from unit, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

941109:	USS HARRY W HILL (DD 986) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  [Extracted from CO's message dated 15Nov94.]

941109:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Extracted from CO's message dated 15Nov94.]

941115:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

941130:	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 941212 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’s first issue contends that his medical diagnosis was of such severity as to mitigate his misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB does not consider the circumstances surrounding the applicant’s stated condition to be of sufficient nature to exculpate the applicant’s misconduct.  Furthermore, after reviewing the member’s entire record, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  There was no evidence to indicate that the Applicant did not know right from wrong or was somehow not capable of making rational, appropriate decisions.  Relief is denied.

This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 have existed 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, is considered.  The applicant provided no documentation of his post-service.  The Applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the Applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  

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 “afls14.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