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

ex-FA, USN
Docket No. ND02-01299

Applicant’s Request

The application for discharge review, received 20020912, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 the acknowledgement 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 20030828.  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.  I have been a good working citizen since discharge, aswauth [A92.22]

2.  My record was pretty good with no serious crimes committed. [A92.02]

3.  My discharge was based on many offenses, but they were mostly only minor offenses, aswauth [A94.10]

4.  Personal problems impaired my ability to serve, aswauth [A93.10]

5.  My ability to serve was impaired because of family problems, aswauth [A93.08]

6.  I tried to serve and wanted to, but just couldn't or wasn't able to, aswauth [A94.04]

7.  My ability to serve was impaired because I was not working in a field suitable for me, and impaired my ability to be a "good" service member, aswauth [A93.26]

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)	960228 - 960903	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960904		Date of Discharge:  970715

Length of Service (years, months, days):

	Active:    00  10  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  *NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

* No mark found
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:

970516:	NJP for violation of UCMJ, Article 86 and 92:  No further information found in service record.
	Award:  No indication of appeal in the record.

970606:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 970601, violation of UCMJ, Article 92: Fail to obey a lawful order by wrongfully drinking under the age of 21, violation of UCMJ, Article 134: Incapacitated for the proper performance of duties.
	Award:  Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

970610:	Vacate forfeiture of $100 for 1 month awarded at CO's NJP dated 970517, due to continued misconduct.

970703:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order issued by HTA3 not to hit a fellow service member on 970630.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

970715:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970715 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:  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.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

Issue 2 and 3:  Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of 10 months, he cannot be given an uncharacterized or entry level separation.  Furthermore, the Board disagrees with the Applicant’s assertion that his offenses were minor.  Even though the civilian world treats some offenses with leniency because they are a minor or a first time incident, the military does not view such offenses as minor infractions to maintain proper order and discipline.  Relief denied.  

Issue 4-7:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel he tried and his personal and family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on three separate occasions thus substantiating the misconduct.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable or general (under honorable) conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors with similar service records normally receive a discharge characterization of under other than honorable conditions. 

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 14, effective 03 Oct 96 until 11 Dec 97), 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