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

 
 ex-FA, USN
Docket No. ND03-00690

Applicant’s Request

The application for discharge review was received on 20030314.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040212.  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/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 believe the record to be unjust because at the time when my discharge took place I took responsibility for something I didn't take part in.  There was gambling going on the ship and I was not present, I was on watch.  However, the shipmates I was associated with were and because they were my friends my name was put in the situation.  At that time I was young and didn't know the definition of a friend.  Now I am much older, mature, and focused on my goals and taking care of my family other than friends.”

I ask the board to consider this application because I am 29 yrs old.  More mature than before.  I am also about to graduate from college.  For the profession I am seeking in the government.  I need my discharge to be upgraded.

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)	931119 - 931121	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931122		Date of Discharge:  941222

Length of Service (years, months, days):

	Active:    01  01  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  11			AFQT:  33

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  6

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:

940201:	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 pre-service civil involvement:  (1) Probation violation, violation of probation, commit depredation against property of US/PV, 12/92 Miami, FL.  Paid $1100 fine and probation for 6 months (dropped).  (2) Burglary conveyance, 8/92, Miami, FL.  Jail for 3 weeks and dropped.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

940614:	NJP for violation of UCMJ, Article 86 (3 specs): Absence from place of duty, violation of UCMJ, Article 90: Willful disobedience of superior officer, violation of UCMJ, Article 134: Minor in consumption of alcohol.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 14 days.  Forfeiture of $150.00 suspended for 4 months.  No indication of appeal in the record.

UNDATED:	Retention Warning from USS CALIFORNIA (CGN 36):  Advised of deficiency (Failure to perform all required military duties (i.e. habitual tardiness and under age consumption).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940622:	Retention Warning from USS CALIFORNIA (CGN 36):  Advised of deficiency (Minor in consumption and absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940902:	Vacate suspended forfeiture awarded at CO’s NJP dated 940614 due to continued misconduct.

940902:	NJP for violation of UCMJ, Article 86 (2 specs): Absence from unit, violation of UCMJ, Article 90: Disobeying a superior commissioned officer.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 22 days.  Forfeiture of $200.00 suspended for 4 months.  No indication of appeal in the record.

940902:	Retention Warning from USS CALIFORNIA (CGN 36):  Advised of deficiency (Absence from unit and willful disobedience of Superior Commissioned Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
941003:	Vacate suspended forfeiture awarded at CO’s NJP dated 940902 due to continued misconduct.

941003:	NJP for violation of UCMJ, Article 86 (2 specs): Failure to go to appointed place of duty, violation of UCMJ, Article 90 (3 specs): Willful disobedience of superior commissioned officer, violation of UCMJ, Article 92: Failure to obey lawful general regulation.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

941015:	USS CALIFORNIA (CGN 36) 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 violation of UCMJ Article 134 (Minor in consumption of alcohol), Article 86 (Unauthorized absence, three specifications), and Article 90 (Willful disobedience of a Superior Commissioned Officer) as determined by CO’s NJP on 14 Jun 94; violation of UCMJ Article 86 (Unauthorized absence) and Article 90 (Disobeying a Superior Commissioned Officer) as determined by CO’s NJP on 2 Sep 94; violation of UCMJ Article 86 (Failure to go to appointed place of duty, two specifications), Article 90 (Willful disobedience of a Superior Commissioned Officer, three specifications), Article 92 (Failure to obey lawful general regulation) as determined by CO’s NJP on 3 Oct 94; by reason of misconduct due to commission of a serious offense as evidenced by violation of UCMJ Article 90 (willful disobedience of a superior commissioned officer) as determined by CO’s NJP on 2 Sep 94; violation of UCMJ Article 90 (Willful disobedience of a superior commissioned officer, three specifications) and Article 92 (Failure to obey a lawful general regulation) as determined by CO’s NJP on 3 Oct 94; and for defective enlistment and induction due to fraudulent entry into naval service as determined by NAVPERS 1070/613, administrative remarks of 1 Feb 94 and by Chief of Naval Personnel letter dated 26 Aug 94.

941015:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

941015:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and defective enlistment due to fraudulent entry into naval service.

941103:	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 19941222 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:  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 that his immaturity was a contributing factor, it does 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 for numerous offenses.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   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 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), 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