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

 ex-AR, USNR
Docket No. ND03-01005

Applicant’s Request

The application for discharge review was received on 20030516.  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  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 20040415.  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.  “While onboard USS SARATOGA CV-60 during a Med deployment ABEC C_ called me into the V-2 arresting gear office, he then proceeded to state that how some persons were not cut out for the military service and that he felt that I was such a person.  He then asked if I had rather be on the ship or on shore.  I answered by saying I don’t know one of us who would not rather be on the beach.  He then stated well that is where you are going and that I needed to report to the legal department so I would be off the ship inside of a week, and after words to start out processing from the division.”

Documentation

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

Applicant’ DD Form 214
Three pages from Applicant’s service

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:  900919		Date of Discharge:  920916

Length of Service (years, months, days):

	Active:    01  11  28
	Inactive:  00  00  07

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  49

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.00 (2)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NDSM, SASM with 2 Bronze Stars, KLM, SSDR

Days of Unauthorized Absence:  76

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:

Undated:	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.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if found not factual, this waiver is void and your can be subject to other judicial or administrative proceedings.  88Jun Speeding, paid $70.00, 88Jan Speeding, paid $70.00, 87Nov, Speeding, paid $70.00.

910417:	Applicant to unauthorized absence 0730, 910417.

910418:	Applicant from unauthorized absence 0700, 910418.

910723:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0500, 910613 to 0730, 910628 (15 days/surrendered).
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

910723:	Retention Warning from USS SARATOGA (CV 60):  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910809:	NJP for violation of UCMJ, Article 92: Disobey a lawful order by missing 7 restricted men’s musters between 910728 and 910806.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

910926:	Applicant to unauthorized absence 0645-1450, 910926.

911121:	Applicant declared a deserter.

911213:	Applicant apprehended by civil authorities.

911214:	Applicant from unauthorized absence 0010, 911214.  Applicant to pretrial confinement.

920120:	Applicant released from pretrial confinement.

920121:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86, (2 specs):
	Specification 1: Unauthorized absence from 0645, 911008 to 0730, 911018 (10 days/surrendered).
	Specification 2: Unauthorized absence from 0645, 911022 to 0010, 911214 (51 days/apprehended).
	Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence: forfeiture of $350 per month for 4 months, confinement for 4 months.  Confinement for 2 months suspended for 6 months.
	CA 920318: Sentence approved and ordered executed.

920121:	Applicant to confinement.

920201:	Applicant from confinement and returned to full duty.

920417:	Applicant to unauthorized absence 0645-1000, 920417.

920514:	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 and commission of a serious offense.

920515:	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.

920731:	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.

920819:	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 19920916 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 two occasions, one special court-martial, adverse counseling entries, and performance and conduct markings well below the minimum acceptable levels.  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.

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