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

 
 ex-PNSN, USN
Docket No. ND03-00711

Applicant’s Request

The application for discharge review was received on 20030324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir(s)/Ma’am(s), 
I am requesting your reconsideration regarding the status of my military separation/discharge.  I have made many mistakes during my term of service as a result of immaturity and inability to handle extreme stress in high pressure situations.  I have, however served the U.S. Navy proudly and to the best of my ability (at the time) for 3 years and 4 months, just 8 months short of my enlisted obligation.  During my time in the navy, I have suffered from psychological, physical and emotional trauma, which I have irresponsibly allowed to interfere with my duties as a United States sailor.  For this I can never forgive myself.  Frankly, I was extremely immature and did not realize the nature or the repercussions of my illcalculated and rash actions.  I am now a father of three and a husband.  I am enrolled  (full time) in the city college of San Francisco with hopes of transferring to a university.  I have been pursuing a career in law enforcement going on two years now, however a non-honorable discharge has been seriously hindering any hopes of being appointed.  I would also request a decision for upgrading my separation so I may have another opportunity to again serve my (our) country.  If given said consideration I plan to join the naval reserves, now stable and competent, I would like to complete my obligation I swore to.  I understand that you must receive many requests of this nature, however I employee you to please consider my request as my motives are genuine.  I would like to have a chance to correct a haunting mistake.  Thank you for your time and patience.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941028 - 941226	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  941227		Date of Discharge:  980303

Length of Service (years, months, days):

	Active:    03  02  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  10			AFQT:  68

Highest Rate:  PN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (3)	Behavior:  3.66 (3)		OTA:  3.36

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC (2), AFEM, NAVY”E”, SSDR

Days of Unauthorized Absence:  15

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

951102:	UA from 0700-0800, 921102 (1 hour)

960101:	UA from 0745-1300, 960101 (5 hour/15 minutes)

960828:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 128, assault consummated by a battery, and Article 117, provoking words and gestures, as evidenced by your commanding officer’s non-judicial punishment imposed on 960828.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960828:	NJP for violation of UCMJ, Article 117: Did on or about 960827, wrongfully use reproachful words, violation of UCMJ, Article 128: Did on or about 960827, unlawfully kick SA S___ C___ in the chest with his foot.
Award: Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

970619:	UA from 0715-1420, 970619 (6 hours/5 minutes)

970626:	NJP for violation of UCMJ, Article 86: (3 Specifications), Spec 1: UA from 970520-970603 (15 days/S); Spec 2: UA from 0715-1420, 970619; Spec 3: UA from 0715-0732, 970616, violation of UCMJ, Article 92: Derelict in the performance of duties on or about 970617.
	Award: Correctional Custody for 30 days, forfeiture of $350.00 pay per month for 2 months, reduction to E-2.  No indication of appeal in the record.

980220:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by your non-judicial punishment imposed on 970626 for violation of the UCMJ, Article 92, Derelict in the performance of duties on or about 970617 and your violation of the UCMJ, Article 107, False official statement on or about 980107 and misconduct due to a pattern of misconduct as evidenced by your two non-judicial punishment imposed on 960828 and 970626 and your violation of the UCMJ during 9801, during your current enlistment.

980220:	Applicant advised of rights.  [Document not legible, unable to determine which rights Applicant selected].

980227:	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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980303 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 two non-judicial punishments (NJP’s).  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.  An upgrade to honorable or general under honorable conditions would be inappropriate.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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