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

 
 ex-GMGSR, USN
Docket No. ND03-00790

Applicant’s Request

The application for discharge review was received on 20030402.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the Government.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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 and the reason for 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.  “My ability to serve was impaired by my youth and immaturity.

2.  My ability to serve was impaired because I was not working in the field I was trained for.

3.  My average conduct and efficiency ratings/behavior and proficiency marks were good (or pretty good).

4.  I have been a good citizen since discharge.”

Documentation

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

Applicant’s DD Form 214
Character/job reference, undated
Twenty pages from Applicant’s service
American Legion’s comments, dated April 13, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900419 - 900918	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900919		Date of Discharge:  921116

Length of Service (years, months, days):

	Active:    02  01  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  GMGSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.10 (2)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  129

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:

900921:	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/ drug abuse.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if found not factual, this waiver is void and you can be subject to other judicial or administrative proceedings, ie speeding, 7/90, San Diego, CA, paid $75 fine.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

911007:	Applicant to unauthorized absence 0715, 911007.

911015:	Applicant from unauthorized absence 2315, 911015 (8 days/surrendered).

911029:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
	Award: Forfeiture of $300 per month for 1 months, extra duty for 14 days.  No indication of appeal in the record.

920203:	Applicant to unauthorized absence 0500, 920203.

920223:	Applicant from unauthorized absence 1420, 920223                                                                             (20 days/surrendered).

920225:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Failure to obey written order.
	Award: Forfeiture of $300 per month for 2 months, extra duty for 45 days.  No indication of appeal in the record.

920326:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0500, 920323 to 1800, 920325 (2 days/surrendered).
	Award: Reduction to GMGSR.  No indication of appeal in the record.

920326:	Retention Warning from USS BARBOUR COUNTY (LST 1195: Advised of deficiency (Unauthorized absence from 920323 to 920325), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920518:	Applicant missed ship’s movement.

920526:	Applicant missed ship’s movement.

920529:	Applicant declared a deserter.

920601:	Applicant missed ship’s movement.

920619:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Unauthorized absence from 0700, 920416 to 0025, 920507 (20 days/surrendered).
	Specification 2: Unauthorized absence from 0700, 920511 to 2315, 920615 (34 days/surrendered).
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $522.00,confinement for 24 days, confinement on bread and water for 3 days.
	CA action 920622: Sentence approved and ordered executed.

920706:	Applicant released from confinement and returned to full duty.

920804:	Retention Warning from USS NEW ORLEANS (LPH-11): Advised of deficiency (Unauthorized absence from 921007 to 911015, 920203 to 920223, 920323 to 920325, 920416 to 920507, 920511 to 920615, and failed to obey written orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920811:	Applicant missed ship’s movement.

920905:	Applicant declared a deserter.

921001:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0500, 920806- 2310, 920921 (45 days/surrendered).
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $300.00, confinement for 30 days.
	CA action 921008:  Sentence approved and ordered executed.

921001:	Applicant to confinement.

921017:	USS NEW ORLEANS (LPH-11) 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 of more punishments under the Uniform Code of Military Justice within the current enlistment, and misconduct due to commission of a serious offenses, to wit: failure to obey a lawful written order and unauthorized absence in excess of 30 days.

921017:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

921024:	Applicant from confinement and returned to full duty status.

921029:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

921109:	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 19921116 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).

Issues 1-4:  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 youth and immaturity 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 nonjudicial punishment (NJP) on three separate occasions as well as a summary court-martial thus substantiating the misconduct.  

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 sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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, 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