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

ex-ABFAR, USN
Docket No. ND02-01123

Applicant’s Request

The application for discharge review, received 020805, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501.  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.  To Whom It May Concern:

I think I was treated unfairly, because the punishment didn't fit the crime.  "ASWAUTH"
I was going through difficult times, back home, with illness of my daughter.
I couldn't seem to get focused or find the proper motivation to do what was required of me.  As you all know the Navy demands your full and undivided attention, and I couldn't give it to them and my daughter.  "ASWAUTH"

But after thirteen years of not being able to find a descent job or having to hide my military background from my love ones and freinds is too much "ASWAUTH"

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881230 - 890319	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890320		Date of Discharge:  910830

Length of Service (years, months, days):

	Active:    02  05  11	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  29/30

Highest Rate:  ABFAR

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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:

891121:	NJP for violation of UCMJ, Article 128: Assaulted an Airman on 891120 by kicking him in the face.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

891121:	Retention Warning from USS CORAL SEA (CV 43):  Advised of deficiency (Conduct reveals that you have committed one or more minor disciplinary actions in violation of the Uniform Code of Military Justice for which you have received punishment under Article 15, UCMJ; or that you have been convicted of misdemeanor charges by civil courts on one or more occasions; or that you have committed a combination of offenses which resulted in punishment under Article 15, UCMJ, or one or more civil convictions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	    
891227:	NJP for violation of UCMJ, Article 117: Provoking gestures and speeches, violation of UCMJ, Article 128: Assault.
	Award: Forfeiture of $100 per month for 1 month, correctional custody for 7 days.  No indication of appeal in the record.

900913:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 900802, violation of UCMJ, Article 134: Communicate a threat on 900805.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

900918:	Retention Warning from USS KITTY HAWK (CV 63):  Advised of deficiency (27Dec90-OIC's NJP VUCMJ Article 117 - provoking speeches and gestures; VUCMJ Article 128 - assault; 21Nov89-CO's NJP, VUCMJ Article 128-assault on 20Nov89 by kicking an AN in the face; CO's NJP 6Sep90-VUCMJ Article 92-fail to obey a lawful order issued by a commissioned officer on 02Aug90; communicate a threat on or about 05Aug90.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901105:	Applicant unauthorized from 0645-0800, 901105.

910130:	Applicant to unauthorized absence 0700, 910130.

910131:	Applicant  to unauthorized absence 0815, 910131 (1 day/surrendered).

910517:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645, 910409, to wit: duty section muster, (2) Unauthorized absence from 2000-2400, 910409, to wit: roving security, (3) Unauthorized absence from 1800, 910409 to 0700, 910410.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days, reduction to E-X.  No indication of appeal in the record.

910523:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1800 restricted men's muster and extra duty on 910517.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

910628:	USS KITTY HAWK (CV 63) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by your enlisted service record.

910703:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

910717:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): ABFAR (Applicant) has been on active duty for over two years.  This is his second duty station following training.  In the past two years, ABFAR (Applicant) has been to Captain's Mast five times.  As a result, he has never been able to attain a pay grade higher than E-1.  ABFAR (Applicant) was warned on 25 September 1990, following his third Captain's Mast, that further misconduct could result in administrative discharge.  Since that warning, he has been the subject of nonjudicial punishment proceedings on two additional occasions.  ABFAR (Applicant) has shown by his flagrant disregard for military authority and pattern of misconduct that he is completely disinterested in his military obligation.
	ABFAR (Applicant) has demonstrated no potential for further naval service and, accordingly, I recommend expeditious administrative discharge under other than honorable conditions.

910814:	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 910830 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 contends his disciplinary problems, to include 5 separate nonjudicial punishments over a two year period, were the result of stress caused by his daughter’s illness and that his discharge was inequitable.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB agrees the Applicant's service was equitably characterized.  Relief denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Verifiable proof of 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, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider.

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 15560C, effective 15 Aug 91 until 
04 Mar 93), 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