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

 
 ex-ICFR, USN
Docket No. ND03-00513

Applicant’s Request

The application for discharge review was received on 20030211.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review 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, he 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 20040114.  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

Applicant’s issues, as stated on the application:

“1.  I am writing this letter to ask for your assistance on how to upgrade my other than honorable discharge to an honorable discharge.  On December 21, 1992 I was discharged from the U.S. Navy on other than honorable conditions due to a pattern of misconduct.  I served 2 years 8 months and 4 days of my 4 year term.  The problem initially began when I was transferred to SIMA Little Creek from the USS AMERICA (CV-66) due to medical reasons.  At the time of transfer, my rate was an Interior Communication Electrician.  Then, SIMA Little Creek had an interior communication shop in its services, however, instead of assigning me to that shop, I was assigned to the Tech Library and First Lt.  The job consisted of cutting grass and picking up trash throughout the base.  At my tender age and time in service I was eager to learn all about my rate.  This assignment made me feel as though I was being retained from learning and advancing in my rate, which in return discouraged me.  Being young and naïve my morale began to depreciate tremendously.  Following this, I encounter some miscellaneous charges in the civilian world which ended in two visits to Captain’s Mast.  Being immature and misguided I had no one to counsel me with my decision.  Soon after I was discharged inequitable from the military.  Presently, I am a mature, law-abiding and tax paying citizen that is seeking your assistance in getting my discharge to assist me in present and future endeavors.  Your assistance is greatly appreciated and I look forward to hearing from you soon in reference to this matter at the above address.  Thank you for your consideration.”

Documentation

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

Copy of DD Form 214
Copy of Enlisted Performance Record
Copy of Virginia Criminal Record (2 pages)
Career Appointment Employment Letter date January 11, 2002
Career Appointment Employment Letter date January 30, 2002
Employment Selection Letter dated February 28, 2002 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891027 - 900304	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900305		Date of Discharge:  921221

Length of Service (years, months, days):

	Active:    02  08  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rate:  ICFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  2.60 (3)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, NUC, SSDR

Days of Unauthorized Absence:  55

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:

900306:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement: 8910: Speeding, Henrico County, VA.  Fined $95.00.  However, any further deficiencies in performance or conduct may result in processing administrative separation.

901025:	Retention Warning from [SSC, San Diego, CA]:  Advised of deficiency (Violation of UCMJ, Article 134: Stolen property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
  
901025:	NJP for violation of UCMJ, Article 134: On or about 900817-900907, member, with intent to defraud, illegally used stolen property, to wit: Telephone Company Credit Card.
	Award: Forfeiture of $169.00 pay per month for 1 month.  No indication of appeal in the record.

920708:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920708 having been an unauthorized absentee since 0700, 920608 from SIMA Little Creek, VA.

920709:	NJP for violation of UCMJ, Article 86: Did on or about 0700, 920608 without authority absent himself from his organization and remained absent until on or about 1330, 920708 (30 days/S).
	Award: Extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

920710:	Report of Return of Deserter.  Applicant surrendered to military control on 920708 (1330) at SIMA Little Creek, VA.  Returned to military control 920708 (1330).  Retained onboard for disciplinary action.

921008:	NJP for violation of UCMJ, Article 86: (3 Specifications); Spec 1: UA on or about 0700, 920827 to 0700, 920901 (5 days); Spec 2: UA on or about 0700, 920903 to 0930, 920915 (12 days); Spec 3: UA on or about 0700, 920918 to 1130, 920918, violation of UCMJ, Article 92: Fail to obey lawful order on or about 920915.
	Award: Reduction to E-1.  No indication of appeal in the record.

921008:	SIMA Little Creek notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within your current enlistment.  Notified that the lowest characterization of service possible was under other than honorable conditions.

921008:	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.

921022:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within his current enlistment

921102:	BUPERS advised CO, SIMA Little Creek, VA that the last retention warning must be issued from the current command.

921105:	NJP for violation of UCMJ, Article 86: Did on or about 0730, 921017 to on or about 0700, 921019 without authority absent himself from his organization, violation of UCMJ, Article 92: (2 Specifications), Spec 1: Having knowledge of a lawful order, an order which it was his duty to obey fail to obey the same by wrongfully not reporting to SIMA Officer of the Deck for extra duties; Spec 2: Having knowledge of a lawful order, an order which it was his duty to obey fail to obey the same on or about 921014 by wrongfully not initialing beside his name on the watch bill.
	Award: Forfeiture of $100.00 pay per month for 2 months, extra duty for 30 days.  No indication of appeal in the record.

921109:	Retention Warning from [SIMA Little Creek, Norfolk]:  Advised of deficiency. [You have been to Captain’s Mast four times in your current enlistment.  You have violated UCMJ Articles 86, 92, and 134 (some repeated offenses).  You were found guilty and awarded NJP on each occasion.  Such personal behavior at this command can establish a pattern of misconduct.]  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

921130:	Civil Conviction:  [Norfolk District Criminal Court] for failure to appear in court (2 counts), trespassing, and urinating in public.
Sentence:  Charge 1: 60 days jail suspended, fined $52.00 plus court cost; Charge 2: 30 days jail suspended, fined $26.00 plus court cost; Charge 3: Fined $25.00 plus court cost.

921202:	NJP for violation of UCMJ, Article 86: UA from 921125-921130, 921201-921202.
Award: 30 days extra duty.  No indication of appeal in the record.

921202:	SIMA Little Creek 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 three or more punishments under the UCMJ and/or civilian convictions within current enlistment.

921202:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

921203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ and/or civilian convictions within current enlistment.

921211:	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 19921221 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.  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 on five occasions, a civil conviction and adverse counseling entries on other occasions.  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 characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 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