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

ex-SR, USN
Docket No. ND03-01268

Applicant’s Request

The application for discharge review was received on 20030724.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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: GENERAL (UNDER 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.  “My discharge was inequitable because it was based on incidents within the last 6 mons of my service. with the chain of command.
Based upon the chain of command my performance in the division was unsat. When the COC arrived at the command, I had already been on board 2 yrs and had proven myself.  So now, it was time to show the new sailors in the division everything that I knew (being the most senior seaman) they looked at it as slacking, skating.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Applicant also marked the box “I PREVIOUSLY SUBMITTED AN APPLICATION ON MAR 02, 2003 AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES.  The application was returned to the Applicant as incomplete on June 11, 2003.

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on Jan 30th 2004 and the following comments are hereby submitted:

The Applicant only had two NJPs and that was considered a pattern of misconduct.  It was noted on her July 2000 evaluation that the sailor was a team player, with good military bearing and has shown good potential.  With some stronger leadership, we believe the Applicant could have been on her way in becoming an excellent sailor.  We further believe that since there were only two minor NJPs, that there is an equity issue with the discharge.  We fully concur with her contentions.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be upgraded to honorable based on the issue of equity.”

Documentation

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

Applicant’s DD Form 214
Employee Evaluation Checklist, dated May 29, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990730 - 991018	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991019		Date of Discharge:  020614

Length of Service (years, months, days):

	Active:    02  07  26
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (4)	Behavior:  2.50 (4)		OTA:  2.38

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, AFEM, NER with 2 E’s, NDSM, SSDR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

020502:	NJP for violation of UCMJ, Article 86: Absence from appointed place of duty on 020430.
	Award: Forfeiture of $648.00 per month for 2 months, restriction and extra duty for 25 days, reduction to SA.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

020502:	Retention Warning:  Advised of deficiency (Absence from appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

020523:	Vacate suspended forfeiture and reduction awarded at CO’s NJP dated 020502.

020523:	NJP for violation of UCMJ, Article 86: Failure to go on 020509, violation of UCMJ, Article 134: Sleeping during working hours on 020509.
	Award: Forfeiture of $552.75 per month for 1 month, restriction and extra duty for 20 days, reduction to SR.  No indication of appeal in the record.

020523:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

020523:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020722:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): SR I_ J_ D_ (Applicant) was separated on 23 Jun 02, for Pattern of Misconduct, receiving a General discharge with a JKA SPD code.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020614 with a general (under 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:  The Applicant contends that she served the United States well and she is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general (under honorable conditions) discharge is warranted when negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions thus substantiating the misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  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 her misconduct while on active duty.  

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 her 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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