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

 ex-SMSR, USN
Docket No. ND02-01073

Applicant’s Request

The application for discharge review, received 020723, requested that the characterization of service on the discharge be changed to honorable.  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 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

Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank.

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)	880220 - 880831	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880901		Date of Discharge:  901127

Length of Service (years, months, days):

	Active:    02  02  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rate:  SMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (2)	Behavior:  2.40 (2)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  BEA

Days of Unauthorized Absence:  None

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:

890713:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Failure to go to appointed place of duty on 1200, 890629, (2) Failure to go to appointed place of duty on 1200, 890701, (3) Failure to go to appointed place of duty on 1200, 890709, violation of UCMJ, Article 128: Assault on 2040, 890622, violation of UCMJ, Article 134: Drunk and disorderly on 0240, 890622.
	Award: Forfeiture of $200 per month for 1 month, correctional custody for 30 days.  No indication of appeal in the record.

900719:	NJP for violation of UCMJ, Article 86 (3 specs): Absent from place of duty.
	Award: Restriction and extra duty for 21 days, reduction to SMSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

900719:	Retention Warning from USS BLUE RIDGE (LCC 19):  Advised of deficiency (Appearance at Commanding Officer's nonjudicial punishment on 13 July 1989 for violation of the Uniform Code of Military Justice, Article 86 (3 specifications), failure to go to appointed place of duty, Article 128, Assault, Article 134, Drunk and disorderly, and on 19 July 1990 for violation of the Uniform Code of Military Justice, Article 86 (3 specifications), Absent from place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900816:	Vacate suspended reduction to SMSA awarded at CO's NJP dated 900719.

900816:	NJP for violation of UCMJ, Article 86 (5 specs): Unauthorized absence from place of duty, violation of UCMJ, Article 92: Dereliction of duty.
	Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSR.  No indication of appeal in the record.

900831:	NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 45 days.  Restriction and extra duty for 45 days suspended for 3 months.  No indication of appeal in the record.

901023:	Vacate suspended forfeiture of $200 for 1 month, restriction and extra duty for 45 days awarded at CO's NJP dated 900831.

901025:	NJP for violation of UCMJ, Article 92: Disobey lawful order, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $350 per month for 1 month.  No indication of appeal in the record.

901025:	USS BLUE RIDGE (LCC 19) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by nonjudicial punishments on 13 July 1989 for violation of the Uniform Code of Military Justice, Article 86, failure to go to place of duty, Article 128, assault, and Article 134, drunk and disorderly; nonjudicial punishment on 19 July 1990 for violation of the Uniform Code of Military Justice, Article 86, absent from place of duty; nonjudicial punishment on 16 August 1990 for violation of the Uniform Code of Military Justice, Article 86, five specifications of absent from place of duty, and Article 92, dereliction of duty; nonjudicial punishment on 31 August 1990 for violation of the Uniform Code of Military Justice, Article 86 for four specifications of absent from place of duty; and nonjudicial punishment on 25 October 1990 for violation of the Uniform Code of Military Justice, Article 92, disobeying a lawful order, and Article 107, making a false official statement.

901028:	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.

901026:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

901030:	CNMPC 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 901127 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 introduced no decisional issues for consideration by the Board.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on five occasions and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted. 

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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, Change 8 effective 21 Aug 89 until 14 Aug 91), 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