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

 
 ex-DCFR, USN
Docket No. ND03-01043

Applicant’s Request

The application for discharge review was received on 20030527.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 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 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.  I do not want my discharge to interfere with future employment opportunities.  I would like to go back to active duty.”

“Dear Navy Discharge Review Board:

My name is C_ J L_.  I received an Other Than Honorable Discharge on August 26th 2002 from the United States Navy.  I was a Damage Controlman “A” School Graduate and I was on active duty from September 26th 2000 until August 26th 2002.  I went to Captain’s Mast 3 times for Unauthorized Absences, Insubordination, and a few other minor mistakes.  It is my opinion that I was only discharged because I told my upper chain of command I wanted to be discharged.  I have made a mistake and I would like to fix my mistake.  I would like to come back to active duty and serve in the Navy as a career, not just a job.  I will never cause anymore problems, and I will repay any debts owed to the United States Navy.

Since my discharge in August 2002, I have not been in any trouble with the Police.  I have no debts other than what I owe Defense Finance and Accounting Service for my enlistment bonus.  I have kept a full time job the entire time at Sesame Solutions LLC.  I have bought and paid for a house and car.  I am single with no children.  I am still in excellent health.  I have had no major illnesses.  I have learned to drive a Forklift and have received training as a Machine Operator in an industrial environment.  I have been doing well since my discharge.  However my discharge is a shame to me and I would like to fix my mistakes and repay my debts to the military.  I apologize to the Commanding Officer of the U.S.S. Dubuque Captain B_ J. M_ and my entire chain of command.

I would like to have my discharge upgraded so I can rejoin the Navy and pursue a long and healthy career with the United States Armed Forces”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Copy of Form 611-1-2-R-E (AFQT Percentile)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000809 - 000924	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  000925		Date of Discharge:  020826

Length of Service (years, months, days):

	Active:    01  11  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  58

Highest Rate:  DCFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (0)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NAVY”E”, NDSM, SSDR

Days of Unauthorized Absence:  3

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:

020405:	Retention Warning:  Advised of deficiency (You have failed to adhere to the rules of the UCMJ evidenced by your conviction at CO’s NJP for violation of UCMJ Articles 107, 90, 92, 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020405:	NJP for violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 90: Willful disobedience of a superior commissioned officer, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Forfeiture of $649.50 pay per month for 2 month(s), restriction and extra duty for45 days, reduction to E-1.  No indication of appeal in the record.

020412:	Retention Warning:  Advised of deficiency (You have failed to adhere to the rules of the UCMJ evidenced by your conviction at CO’s NJP for violation of UCMJ Articles 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020412:	NJP for violation of UCMJ, Article 134: Restriction breaking.
	Award: Forfeiture of $577.75 pay per month for 2 months.  No indication of appeal in the record.

020722:	Retention Warning:  Advised of deficiency (You have failed to adhere to the rules of the UCMJ evidenced by your conviction at CO’s NJP for violation of UCMJ Articles 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020722:	NJP for violation of UCMJ, Article 86: UA from 020708 to 020711 (3 days/R).
Award:  Forfeiture of $578.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

NO DISCHARGE PACKAGE AVAILABLE 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020826 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service.  An upgrade to honorable or general (under honorable conditions) would be inappropriate.  Relief denied.

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.  

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), 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