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

 ex-FR, USNR
Docket No. ND02-00982

Applicant’s Request

The application for discharge review, received 020701, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained the American Legion as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424.  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.  I am asking for this review because I was told that after 6 months (from seperation.)  As long as I stayed out of trouble my discharge could be upgraded to a general discharge.

2.  (Equity Issue) 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 this application.

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: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870114		Date of Discharge:  881208

Length of Service (years, months, days):

	Active:    01  02  25
	Inactive:  00  07  29

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  46

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  42 [48]

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:

890914:	Applicant ordered to active duty for 36 months.

880401:	NJP for violation of UCMJ, Article 86 (5 specs): Unauthorized absences under 24 hours.
	Award: Forfeiture of $335 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.  [Extracted from Commanding Officer's message dated 881104.]

880408:	Civil Conviction:  for violation of expired New Jersey tags.  Tried in absentia.
Sentence: Fined $30.00 plus court cost.

880501:	NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of 3 hours and 40 minutes on 880420.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

880517:	NJP for violation of UCMJ, Article 92: Dereliction in performance of duty.
	Award: Forfeiture of 336 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.  [Extracted from Commanding Officer's message dated 881104.]

880624:	Retention Warning from USS MOINESTER (FF 1097): Advised of deficiency (Violations of the Uniform Code of Military Justice.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880707:	Applicant to unauthorized absence 0730, 880707.

880708:	Applicant from unauthorized absence 1030, 880708 (1 day/surrendered).

880712:	Applicant to unauthorized absence 0650, 880712.

880721:	Applicant from unauthorized absence 0434, 880721 (8 days/apprehended).

880727:	Applicant to unauthorized absence 0730, 880727.

880805:	Applicant from unauthorized absence 1011, 880805 (9 days/surrendered).

880809:	Applicant unauthorized absence 0730-1400, 880809.

880814:	Applicant to unauthorized absence 0730, 880814.

880815:	Applicant from unauthorized absence 1400, 880815 (1 day/surrendered).

880824:	NJP for violation of UCMJ, Article 86 (7 specs):  4 specs over 24 hours.  No further information in service record, violation of UCMJ, Article 87 (2 specs): Missing ship's movement, violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
	Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

880824:	Retention Warning from USS MOINESTER (FF 1097):  Advised of deficiency (Violations of the Uniform Code of Military Justice.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880915:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 1600-2330, 880906, (2) Unauthorized absence from 1230-1700, 880907, (3) Unauthorized absence from 0820-0845, 880909.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

880915:	Applicant to unauthorized absence 1701, 880915.

880922:	Applicant from unauthorized absence 1742, 880922 (7 days/apprehended).

880930:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1701, 880915 to [1500, 880928] (13 days/apprehended), violation of UCMJ Article 134: Breaking restriction on 1701, 880915.
	Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

881010:	Applicant to unauthorized absence 1330, 881010.

881027:	Applicant from unauthorized absence 0920, 881027 (16 days/apprehended).

881103:	NJP for violation of UCMJ, Article 86 (6 specs): Absence without leave over 24 hours, violation of UCMJ, Article 92: Failure to obey lawful order or regulation.
	Award: Forfeiture of $335 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

881103:	USS MOINESTER 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 military offenses under the UCMJ resulting in four nonjudicial punishments cases, within the current enlistment, the offenses to have occurred while assigned to the parent command.

881103:	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.

881104:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

881113:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

881129:	NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence from 1830-2125, 881114, Unauthorized absence 2140-2245, 881114, Unauthorized absence from 1905, 881118 to 0012, 881119, Unauthorized absence from 2330, 881125 to 0700, 881126, violation of UCMJ Article 92 (2 specs): (1) Fail to obey lawful order or regulation on 0615, 881116, to wit: did not get out of his rack by 0600 until 0610, (2) Fail to obey a lawful written regulation on 1434, 881124, to wit: wearing civilian clothes while in a re-indoc status.
	Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881208 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 & 2:  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 failed to provide any post-service documentation.  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 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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