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

 ex-HN, USNR
Docket No. ND02-00857

Applicant’s Request

The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311.  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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I personally do not feel that my discharge was necessary as the most recent incident listed within my service record did not occur as how the US Navy stated the case.  The way in which the incident occurred happened exactly as I stated in my testimony.  I had used a Navy computer internet access to obtain info for a medical journal article that I was attempt to write, and when attempting to do a search for the topic, a site that I perceived to be a reputable site turned out to be an adult content website, and many others sites of the same content opened as well.  The Navy stated a situation like this could not happen.  However a computer specialist I knew at the time said that it could happen.

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930415		Date of Discharge:  981110

Length of Service (years, months, days):

	Active:    05  03  21
	Inactive:  00  03  04

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  45

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  3.40 (1)		OTA:  3.60
Performance:  3.80 (5)	Behavior:  3.00 (5)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR (3), MUC, NER, AFEM, GCM, NUC

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 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

930720:	Applicant ordered to active duty.

980202:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 80.
	Specification: Attempt.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Failure to obey a lawful general order.
	Finding: to Charge I, and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $787.00, confinement for 25 days.
	CA action 980206: Sentence approved and ordered executed.

980202:	Applicant to confinement.

980209:	Retention Warning:  Advised of deficiency (Your conviction at summary court-martial held on 2 February 1998, for VUCMJ, Article 80 - attempt and Article 92 - failure to obey a lawful general order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980222:	Applicant from confinement and returned to full duty.

980714:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order.
	Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 30 days, reduction to HN.  No indication of appeal in the record.

980903:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

980903:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980917:	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.

981022:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981023:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.  Commanding Officer’s comments (verbatim):  [Hospitalman R_’s (Applicant) blatant disregard for authority is evidenced by Record of Administrative Board proceedings.  This kind of behavior is detrimental to good order and discipline and cannot be tolerated.  Therefore, I recommend Hospitalman R_ (Applicant) be separated from the Navy with an Other than Honorable discharge.] 

981026:	Commander, Naval Base Seattle directed 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 981110 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of a Summary Court-Martial and a non-judicial punishment (NJP) on two separate occasions, to include the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

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, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

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 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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