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

 
 ex-OSSN, USN
Docket No. ND03-00969

Applicant’s Request

The application for discharge review was received on 20030515.  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 reduction in force (RIF).  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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 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

ISSUES EXTRACTED FROM APPLICANT’S STATEMENT:

“1.  I did not, at any time, go AWOL”
 
“2.  I did not, at any time, get caught in possession of illegal drugs, or test positive for illegal drugs.”

“3.  I did not, at any time, commit a “willful misconduct” without the events that occurred during the war, perhaps, however, no one ever tried to actually help.  If I could have dealt with my situation, service related anxiety with clear causation and clear effects- I would have.”

“4.  I received no psychological evaluation* at any time, (nor a dental exam or medial exam-(that is why my DD214 remains unsigned) and no one has ever linked a sleep disorder with misconduct.

*By a qualified psychologist or psychiatrist.”

“Thank you for reviewing my situation.”

Documentation

In addition to the service record (medical record could not be located), the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Character Reference Letter
Statement from Applicant (6 pages)
Copy of Privacy Act Release Form (2 pages)
Resume (2 pages)
Copy of Congressional Letter dated April 15, 2003
Congressional Correspondence Request dated May 8, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890131 - 890205	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890206		Date of Discharge:  920811

Length of Service (years, months, days):

	Active:    03  06  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.40 (3)		OTA:  3.53

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, SSDR, NDSM, KLM, SASM(w2b*)

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:

900623:	NJP for violation of UCMJ, Article 86: UA from 0715, 900604 until 0970, 900604, violation of UCMJ, Article 134: Drinking underage on or about 900604.
	Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

911212:	Retention Warning from [USS SARATOGA (CV-60)]:  Advised of deficiency (As evidenced by your misconduct in which you were awarded CO’s NJP on 911212 for violation of the UCMJ, Article 134: Drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911212:	NJP for violation of UCMJ, Article 134: Drunk and disorderly.
	Award: Reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

920326:	Punishment of RIR to OSSN suspended at CO’s NJP of 911212 vacated this date due to continued misconduct.
 
920326:	NJP for violation of UCMJ, Article 86: UA from 2030, 920316 until 0645, 920317, violation of UCMJ, Article 92: Failure to obey a lawful order on 920209, violation of UCMJ, Article 107: Falsify an official record on 920218.
	Award: Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

920327:	USS SARATOGA (CV-60) 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 your three Commanding Officer’s nonjudicial punishments, and for misconduct due to commissioned of a serious offense as evidenced by your failure to obey a lawful order and by your act of falsifying an official statement.

920331:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to a minimum of two working days to respond to the Notice of the Administrative Board Procedure Proposed.  Applicant did object to separation.

920721:	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.

920811:	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 19920811 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, 2 &3:  The Applicant’s service record was marred by award of three non-judicial punishments for unauthorized absences, underage drinking, drunk and disorderly conduct, disobeying a lawful order, and falsifying an official record.  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 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 would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Issue 4:  In the absence of Applicant’s medical record, the Board having reviewed the service record, with the supporting documents provided by the Applicant, found no indication in the record that Applicant was denied assistance/treatment.  The Applicant’s allegations, that he was denied assistance and medical treatment, do not refute the presumption of regularity in this case.  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.  Relief denied.

The summary of service clearly supports the characterization of service and pattern of misconduct was the reason the applicant was discharged.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief based on this issue is not warranted.

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 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