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

 ex-ADAA, USN 
Docket No. ND03-00183

Applicant’s Request

The application for discharge review, received 20021114, 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated:

“1.  My discharge was in proper because my division officer C.W.O. 4 T_ F_ allowed my supervisor Petty officer 2nd class J_ W_ to call me their little spic.  When I was sent to captains mass for a fight I had they lied and my attorney (J.a.g.) would not listen to me and put in a plea that I didn’t authorize.  The evening in question I was sitting in my vehicle a man gets in my car and tells me get out I’m taking your car I grabbed my tire iron and went to the passenger side and hit him at my court marshall they said the man was scared of me, 1. He got in my car.  2.  He was 5 ft 11 in.  I was 5ft 4 in.  He out weighed me by 92 lbs the only witness Petty officer 3rd class F_ N_ was not allowed to testify.  Please look in to this.  My life was robbed because T_ F_ and J_ W_ didn’t’ like Hispanics.”

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)	860130 - 860223	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  860224		Date of Discharge:  890301

Length of Service (years, months, days):

	Active:    03  00  08
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.07 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  3

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:

870318:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 0930, 870227 until 1100, 870302 (3 days/surrendered).
	Award: Forfeiture of $369 per month for 1 month, restriction and extra duty for 30 days, reduction to ADAA.  Reduction suspended for 6 months.  No indication of appeal in the record.

880312:	Retention warning gives this date as a date for an NJP.  Not found in record.

880401:	NJP for violation of UCMJ, Article 86: Absent from 0730-0930, 880312, to wit: duty section.
	Award: Oral reprimand.  No indication of appeal in the record.

880503:	Civil Conviction: Nueces County Court for violation of driving while intoxicated on 880324.
Sentence: Fine $500.00, jail for 90 days, court cost $130.50.  Jail sentence probated for 24 months.

880830:	Retention Warning from Naval Air Station, Kingsville, TX:  Advised of deficiency (Establishing a pattern of misconduct as evidenced by your NJP’s dated 18Mar87 for an unauthorized absence and 12Mar88 for an unauthorized absence, and your civil conviction dated 24Mar88 for driving while intoxicated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881201:	NJP for violation of UCMJ, Article 128: Assault, aggravated with a dangerous weapon, means, or force on 0230, 881014, to wit: a tire iron.
	Award: Forfeiture of $376 per month for 2 months, restriction for 30 days.  No indication of appeal in the record.

881207:	Naval Air Station, Kingsville, TX notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by all incidents that have occurred during your current enlistment.

881207:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890117:	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 misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct commission of a serious offense.

890219:	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 19890301 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 a treated unfairly.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three separate occasions for unauthorized absence and assault.  The Applicant elected to appear before an administrative discharge board and it recommended separation under other than honorable conditions.  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 and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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, Change 6 effective 11 Jan 89  until 24 May 89), 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