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

 ex-FR, USNR
Docket No. ND02-00681

Applicant’s Request

The application for discharge review, received 020415, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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.  In a 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 030116.  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.  To whom it may concern

February of "95" 1 purchased a handgun. I was going by the laws of the state of Virginia, and riding with the gun unloaded on the front seat of my car.  Earlier that day I was at the gun range, which I explained to the commanding officer of the base.  I also told them, at the time of the traffic stop, I had not been through my indoctrination and didn't know the rules of the base.  About a week after I was charged with having a fire arm on the base, I was sent through my induct after the incident happened.  Thats when I was informed about the rules of the proper procedure of having a handgun on the base.  At the time I was placed on a medical hold because I had a herniated disc in my lower back.  My original discharge date was June 1 1995.  Since I was place on medical hold the doctor informed me that I would be on med. hold until January of 96. when I went to my trial I didn't have council to represent me.  I didn't think I needed it because I was never explained the procedure of the base.  The verdict was, reduction in rate and my gun was confiscated as payment for fines.  June 1 1995 1 was getting ready for my temp. duty when I got a call saying that I was being discharged and was no longer on med hold.  I had to get a release from the doctor saying that I was okay to be discharged.  As I was going through my discharge, I was informed that, I lost my eligibility for the Montgomery G.I. bill and all my benefits.  I'm asking for an upgrade of my OTH discharge to a general discharge because I feel as though I was unfairly discharged.  I have my service records on microfiche so if needed I could bring them with me to any review or appeal board.

Documentation

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

Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930430 - 950601	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930602		Date of Discharge:  950601

Length of Service (years, months, days):

	Active:    02  00  00 
	Inactive:  None

Age at Entry:  25			Years Contracted:  8

Education Level:  12			AFQT:  55

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

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:

930924:	Counseling:  Advised of deficiency (Directing/counseling.), notified of corrective actions and assistance available.

940328:	Counseling:  Advised of deficiency (Deficient performance, military knowledge/performance, rating knowledge/performance, initiative, reliability, and personal behavior.), notified of corrective actions and assistance available.

940329:	Counseling:  Advised of deficiency (Initial counseling, deficient performance counseling, initiative, and reliability.), notified of corrective actions and assistance available.

940408:	Counseling:  Advised of deficiency (Deficient performance counseling, personal behavior, and military bearing.), notified of corrective actions and assistance available.

940422:	NJP for violation of UCMJ, Article 92: Dereliction of duty on 940405, to wit: willfully failed to complete General Damage Control Examination Code 85 administered by USS LA MOURE COUNTY (LST 1194) for OPPE inspection to the best of his ability by failing to give authorized answers to test questions.
	Award: Forfeiture of $466 per month for 1 month, restriction and extra duty for 15 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

940422:	Retention Warning from USS LA MOURE COUNTY (LST 1194):  Advised of deficiency (Violation of the UCMJ Art 92: Dereliction of duty as evidenced by your CO's NJP held 22 April 1994.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940630:	Counseling:  Advised of deficiency (Initial counseling, initiative, and reliability.), notified of corrective actions and assistance available.

940702:	Counseling:  Advised of deficiency (Deficient performance counseling, initiative, and personal behavior.), notified of corrective actions and assistance available.

940914:	Counseling:  Advised of deficiency (Deficient performance counseling, reliability, and personal behavior.), notified of corrective actions and assistance available.

940918:	Counseling:  Advised of deficiency (Deficient performance, military knowledge/performance, initiative, reliability, personal behavior, and military bearing.), notified of corrective actions and assistance available.

941010:	Vacate suspended forfeiture of $466.00 for 1 month awarded at CO's NJP dated 940422 due to continued misconduct.

941010:	NJP for violation of UCMJ, Article 86: Absence from place of duty.
	Award: Forfeiture of $416 per month for 1 month, restriction and extra duty for 40 days, reduction to FR.  No indication of appeal in the record.

950303:	Applicant placed on limited duty.

950413:	NJP for violation of UCMJ, Article 92: Failure to obey by wrongfully having in his possession a RUGER 9MM pistol with one magazine and two boxes of ammunition which are dangerous weapons, violation of UCMJ, Article 86 (2 specs): (1) Absent from organization on 0940, 950314 until 0600, 950315, (2) Absent from organization on 950317, violation of UCMJ, Article 107 (6 specs): (1) Make an official statement on 950308, to wit: "I have to go to Physical Therapy everyday at 1300 at Boone clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 1995 and has not been to Portsmouth Naval Hospital since 19 January 1995, (2) Make an official statement on 950309, to wit: "I have to go to Physical therapy everyday at 1300 at Boone Clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 19954 and has not been to Portsmouth Naval Hospital since 19 January 1995, (3) Make an official statement on 950310, to wit: "I have to go to Physical Therapy everyday at 1300 at Boone clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 1995 and has not been to Portsmouth Naval Hospital since 19 January 1995, (4) Make an official statement on 950313, to wit: "I have to go to Physical Therapy everyday at 1300 at Boone clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 1995 and has not been to Portsmouth Naval Hospital since 19 January 1995 (5) Make an official statement on 950315, to wit: "I have to go to Physical Therapy everyday at 1300 at Boone clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 1995 and has not been to Portsmouth Naval Hospital since 19 January 1995, (6) Make an official statement on 950316, to wit: "I have to go to Physical Therapy everyday at 1300 at Boone clinic and then go to Portsmouth to swim," which statement was false in that he has not been to Boone Clinic Physical Therapy since 16 February 1995 and has not been to Portsmouth Naval Hospital since 19 January 1995.
	Award: Forfeiture of $75 per month for 2 months, forfeit handgun and ammunition.  No indication of appeal in the record.

950420:	Commanding Officer, Naval Amphibious Base, Little Creek, VA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.

950428:	Applicant advised of rights and having elected not 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.

950511:	Commanding Officer, Naval Amphibious Base, Little Creek, VA recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments (verbatim):  "FR (Applicant) left his ship with two masts already behind him.  He was duly warned by his prior CMD that any further misconduct could result in administrative separation.  FR (Applicant) reported on board less than two months before he found himself at his third mast at this CMD.  SNM is an administrative burden to both his former and present CMD, and as such has no further potential for service.  FR (Applicant) waived his right to an admin board, understanding that an other than honorable discharge was authorized an could be recommended.  Req expeditious separation fm the naval service under other than honorable conditions."
 
960601:	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 950601 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).

Responding to the Applicant’s issue, the Board disagrees with the Applicant's contention that the discharge was inequitable.  After reviewing the Applicant's entire service record, which included three NJP’s, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

The following is provided for the Applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The Applicant must be aware that 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, may be considered by the NDRB.  As the Applicant provided no documentation of any post-service, relief is denied.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended.
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