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

 
ex-AR, USN
Docket No. ND03-00902

Applicant’s Request

The application for discharge review was received on 20030430.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408.  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.  “We strongly believe all allegations brought against Mr. D_ (Applicant) in his command while in the United States Navy will be out weighted by his good time in the United States Navy.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from May 16, 2001 to September 5, 2002 at which time he was discharged due to Misconduct - Pattern of Misconduct.

The FSM contends the current discharge is improper as the offenses should be out-weighed by the good time served while in the United States Navy.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM submits documentation from the Church, wherein the minister and colleagues attest the good character of the FSM since discharge.  Also enclosed are educational documents that reflect the FSM’s entry into college to make himself a more productive member of society.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully”

Documentation

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

Acknowledgement certificate, dated April 14, 2003
Character reference, dated December 1, 2002
Applicant’s father Exhorter’s papers, dated August 24, 1975
Acknowledgement certificate, dated April 14, 2003
Character reference, dated December 1, 2002
Minister’s license, dated August 15, 1994 
Acknowledgement certificate, dated April 14, 2003
Character reference, undated
Certificate from Greater United Apostolic Church, dated May 21, 1995 
San Antonio College class schedule Spring 2003
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000616 - 010516	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010516		Date of Discharge:  020905

Length of Service (years, months, days):

	Active:    01  03  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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:

010822:	Retention Warning: Advised of deficiency (Commanding Officer’s nonjudicial punishment on 010822 for violation of UCMJ, Article 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010822:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 134 (2 specs): (1) Underage drinking on 010802, (2) Unfit for duty on 010802.
	Award: Forfeiture of $584 per month for 2 months, correctional custody for 30 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

020330:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior officer on 020128, violation of UCMJ, Article 90: Disobeying superior officer on 020128, violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer on 020326, violation of UCMJ, Article 92 (3 specs): (1) Failure to obey lawful general order or regulation on 011228, (2) Failure to obey lawful general order or regulation on 020317, (3) Failure to obey lawful general order or regulation on 020326, violation of UCMJ, Article 117: Provoking speeches on 020326, violation of UCMJ, Article 128: Assault consummated by a battery on 020326.
	Award: Forfeiture of $500 per month for 2 months, restriction for 60 days, reduction to AA.  No indication of appeal in the record.

020702:	NJP for violation of UCMJ, Article 86 (7 specs): Unauthorized absence from appointed place of duty on 020404, 020511, 020516, 020523, 020617, to wit: restriction personnel muster.
	Award: Forfeiture of $577 per month for 1 month, restriction for 60 days, reduction to AR.  No indication of appeal in the record.

020729:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (5 specs):
	Specification 1-5: Unauthorized absence from appointed place of duty on 020703, 020707 020709, 020718, 020724, to wit: restricted personnel muster/conflaguration watch station.
	Charge II: violation of the UCMJ, Article 91:
	Specification: Insubordinate conduct on 020703.
	Charge III: violation of the UCMJ, Article 92 (3 specs):
	Specification 1-3: Fail to obey other lawful order on 020703, 020709, 020718.
	Charge IV: violation of the UCMJ, Article 95:
	Specification: Resisting apprehension on 020718.
	Finding: to Charge I, II, III, and IV and the specifications thereunder, guilty.
	Sentence: Forfeiture of $500.00, confinement for 30 days.
	CA action 020801: Sentence approved and ordered executed.

020731:	Applicant notified 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 punishments under the Uniform Code of Military Justice in his current enlistment.

020731:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020811:	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.

020817:	COMCRUDESGRU TWO 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 20020905 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:  The Board determined that the Applicant’s overall service record does not mitigate his misconduct.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Sailor.  The Applicant’s service record is marred by a court-martial conviction and award of non-judicial punishment (NJP) on three separate occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for a general (under honorable) characterization of service.  Relief denied.  

Issue 2:  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.   At this time, the Board determined that the documentation submitted by the Applicant does not 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 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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