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

 ex-MSSR, USNR
Docket No. ND03-00844

Applicant’s Request

The application for discharge review, received 20030407, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.  The Applicant advised the Board that he would be unable to appear for a personal appearance hearing.  Therefore, a documentary record review was conducted.  

Decision

A documentary record 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

Applicant’s issues, as stated on the application:

1.  “I C_ D_ W_ (Applicant), specially request that the Board considers upgrading my O.T.H. Discharge to an honorable.  I also request that I am allowed eligibility to receive my G.I. Bill and Instructions on how to use it Please!

Supporting Statement:

I was a street kid with no parental guidance.  My experience in the military only made me wish I could do it all over again.  I loved it.  I simply could not relate to professionals.

I am an adult now, 28.  I have attempted to start several businesses and have realized that without an education the pathway to wealthy life will be very difficult.

I am currently a sophomore at N.S.U. Norfolk, VA.  I had to sit out due to financial and schedule problems.  I also attend Vo-Tech, Military Hwy Norfolk, VA.  I’m a musician and sheet metal worker.  Help me please!  Thanks”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“We concur with the Applicant that his discharge should be upgraded, he strongly feels that his ability to serve was impaired by his deprived background.  During his post service, he has been a very productive citizen. 

We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrade to General Discharge.”

Documentation

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

Letter from Applicant, dated May 19, 2003
Special request from Applicant, undated
Applicant’s DD Form 214
Applicant’s Résumé
Letter of reference, dated November 20, 2002
Official receipts from Sheet Metal Workers International Association (5)
Travel certificate, separation without orders
Letter of recommendation, dated May 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  871117		Date of Discharge:  900227

Length of Service (years, months, days):

	Active:    01  05  20
	Inactive:  00  09  20

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  41

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.00 (1)	Behavior:  2.00 (1)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

880908:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

881213:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order on 1935, 881206, violation of UCMJ, Article 134: Wrongfully with intent to defraud used another’s liberty card on 1935, 881206.
	Award: Forfeiture of $157 per month for 1 month, restriction and extra duty for 7 days.  No indication of appeal in the record.

881213:	Retention Warning from Service School Command, Naval Training Center, San Diego, CA:  Advised of deficiency (Found guilty at OIC NJP this date of Articles 92, 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890630:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Go from appointed place of duty on 890611, (2) Unauthorized absence from 0500-0630, 890621.
	Award: Forfeiture of $100 per month for 1 month, correctional custody for 30 days.  No indication of appeal in the record.

890630:	Retention Warning from USS MOUNT WHITNEY (LCC 20)  Advised of deficiency (Go from appointed place of duty, unauthorized absence from unit (repeated incidents)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

891005:	NJP for violation of UCMJ, Article 91: Willful disobedience of a Chief Petty Officer on 890928, violation of UCMJ, Article 128: Assault consummated by a battery on 890916, violation of UCMJ, Article 134 (2 specs): (1) Driving while under the influence of alcohol on 890916, BAC .11%, (2) Drinking under age on 890916.
	Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSR.  No indication of appeal in the record.

891109:	NJP for violation of UCMJ, Article 86 (8 specs): (1) Failure to go to appointed place of duty on 1230, 891013, (2) Failure to go to appointed place of duty on 0610, 891016, (3) Failure to go to appointed place of duty on 1200, 891016, (4) Failure to go to appointed place of duty on 1230, 891018, (5) Failure to go to appointed place of duty on 0855, 891021, (6) Failure to go to appointed place of duty on 1600, 891028, (7) Failure to go to appointed place of duty on 1600, 891031, (8) Failure to go to appointed place of duty on 0830, 891104.
	Award: Forfeiture of $100 per month for 1 month, restriction for 14 days.  No indication of appeal in the record.

891121:	USS MOUNT WHITNEY (LCC 20) 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 commission of a serious offense as evidenced by the service record.

891201:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900104:	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 commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

900129:	Drug and Alcohol Abuse Report: Alcohol abuse, ashore off duty.  DAPA found Applicant not dependent.  Physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended separation.  Comments:   Good in rate, but military performance is poor.

900130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

900201:	Applicant’s case must be referred to new board consisting of all new members.  This action necessary because MILPERSMAN 3640350.1B (4) requires that at least one member of the board must be a reserve officer if Applicant is a reservist.

900221:	USS MOUNT WHITNEY notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by his service record.

900221:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900222:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

900223:	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 19900227 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 (NJP) on four occasions 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.  While he may feel that his deprived background was a factor that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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