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

 ex-ETSN, USN
Docket No. ND02-00556

Applicant’s Request

The application for discharge review, received 020318, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217.  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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Characterization of discharge as general did not fit the circumstances of invol sep. several months after last offense.

2.  Post service accomplishments, especially having received honorable discharge from the National Guard justify upgrading discharge and RE code.

Documentation

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

Presentation from Applicant's attorney
Thirty pages from Applicant's service record
Personal statement from Applicant
Post service accomplishment statement
Recommendation for award dated July 27, 2000 (2)
Request/approval for waiver
Report of Separation and Record of Service effective December 19, 2000 (2)
Honorable Discharge Certificate from Army National Guard, December 19, 2000
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890421 - 890516	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890517		Date of Discharge:  950315

Length of Service (years, months, days):

	Active:    05  09  29
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  68

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (6)	Behavior:  3.10 (6)		OTA:  3.37

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), NEM

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 3630600.

Chronological Listing of Significant Service Events:

920327:	NJP for violation of UCMJ, Article 134: Indecent exposure, to wit: expose his buttocks to a Japanese boat on 920321.
	Award: Forfeiture of $200 per month for 1 month, reduction to ET3.  Reduction suspended for 6 months.  Indication of appeal in the record.

920327:	Retention Warning from [USS INDIANAPOLIS (SSN 697)]:  Advised of deficiency (Poor judgment and irresponsible behavior and failure to think before doing.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930121:	NJP for violation of UCMJ, Article 121: Wrongful appropriation between February and December 1992.
	Award: Forfeiture of 1/2 months pay for 2 months, reduction to ETSN.  Punishment suspended for 6 months.  No indication of appeal in the record.

940207:	NJP for violation of UCMJ, Article 92: Dereliction of duty.
	Award: Forfeiture 1/2 pay per month for 1 month.  Punishment suspended for 3 months.  No indication of appeal in the record.

940407:	NJP for violation of UCMJ, Article 107: False official statement on 940325, violation of UCMJ, Article 121: Larceny of $125.00 on 930322.
	Award: Forfeiture of $467 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSN.  No indication of appeal in the record.

940407:	Vacate suspended forfeiture awarded at CO's NJP dated 940207 due to continued misconduct.

940407	Adverse Performance Evaluation Report for period 93JUL01 to 94APR07.  Seaman Z_ (Applicant) is an intelligent and hardworking technician, but demonstrates extremely poor judgment.  He has repeatedly demonstrated a lack of reliability and ethical morals…Seaman Z_ (Applicant) has failed to live up to his potential as an Electronics Technician and as a Petty Officer in the Navy.  His performance resulted in the loss of trust from the wardroom and the crew.  He is not recommended for advancement or retention.

941109:	Commander, Submarine Squadron 7 notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your CO's nonjudicial punishments on 12 January 1993, 7 February 1994, 22 March 1994 and 7 April 1994 and by misconduct due to commission of a serious offense as evidenced by your violation of the UCMJ Article 121 - wrongful appropriation, Article 121 - larceny, Article 107 - false official statement and Article 134 - indecent exposure.

941109:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950111:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950207:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and commission of serious offense.

950227:	BUPERS directed the Applicant's discharge general (under 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 950315 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 proper and equitable (C and D).

Issue 1:  The Board disagrees with the Applicant’s contention that his discharge characterization does not fit the circumstances of his involuntary separation.  The Applicant was discharged for misconduct, due to a pattern of misconduct after award of non-judicial punishment (NJP) on four occasions and numerous warning and counseling sessions.  A service member may be processed for separation for a pattern of misconduct after three or more punishments under the UCMJ within the current enlistment.  In addition, service members will be dual processed for misconduct due to commission of a serious offense where appropriate.  When a sailor‘s service has been honest and faithful, it is appropriate to characterize that service as fully honorable.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his repeated disregard for 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.

Issue 2:  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

Issue 3:  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.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  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 fully 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 be provided to receive consideration for an upgrade based on post-service conduct.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post-service accomplishments was found not to mitigate the conduct for which he was discharged.  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 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