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

 
ex-ENFN, USNR
Docket No. ND03-01347

Applicant’s Request

The application for discharge review was received on 20030808.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040513.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “In August of 1987, when I enlisted into the United States Navy.  I volunteered myself willing to excel the responsibility of the Navy, tooled pride into my job, know my job well, love doing my job, and succeeded in it.  On October 16, 1989, I was advance to EN3 right on schedule.  After this point my life seen to have got twisted around.  Don’t know if it was my wife at the time or having six kids looking up at you.  My intention was not to hurt or kill anyone, are to cause pain and benign afraid of me.  At that time in my life, I think I just want to go home to be around my family and kids.  After benign discharge I have moved on.  Twelve years with Local 86 I.B.E.W. and a master electrician license in the city of Rochester New York.  Benign now a single parent and still having the responsibility of rising my children and been there for them.  Has been the must important thing I my life to this point.  I never disrespect the Navy, I look back all the time and wish that I had competed my task with the Navy and Be apart of the great service that it provide for the people of the United States of American.  “May God Bless You.”

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

2.  “(Equity Issue)  This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s representative, dated November 4, 2002
Character reference, dated November 11, 2002
Character reference, dated September 18, 2001
Character reference, dated May 2, 2004 
Character references, dated May 11, 2004 (2)
Character reference, dated May 1, 2004
Character reference
Master Electrician card, expiring June 30, 2004
Hearing Club Card, dated 1995
Certificate of Completion for Apprenticeship Training Card, non-dated
Adult CPR card, dated February 8, 1996
Certificate of completion for Apprenticeship Training certificate, dated April 20, 1998

Certificate of Appointment to Journeyman Wireman, dated April 20, 1998
Joint Apprenticeship Training hours detail report, dated January 29, 1997
Applicant’s DD Form 214 (2)

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:  870619		Date of Discharge:  900301

Length of Service (years, months, days):

	Active:    02  06  21
	Inactive:  00  01  21

Age at Entry:  26			Years Contracted:  8

Education Level:  11 GED		AFQT:  24

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.40 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  12

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:

870811:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

880707:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery on 2230, 880706, to wit: unlawfully strike BM2 with an unknown object on the side of the neck, violation of UCMJ, Article 134: Disorderly conduct on 2240, 880706.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

890905:	NJP for violation of UCMJ, Article 91: Contempt or disrespect toward a superior petty officer on 890713.
	Award: Restriction and extra duty for 15 days, reduction to ENFN.  Reduction suspended for 6 months.  No indication of appeal in the record.

890905:	Retention Warning from [USS SUMTER (LST 1181)]:  Advised of deficiency (VUCMJ Articles 86, 91, 92, and 134.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891024:	Retention Warning from [USS SUMTER (LST 1181):  Advised of deficiency (Assault consummated by a battery and disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  Note written at the bottom of page:  This happen two years ago and to this date 10/24/89 just coming to my attention.

891029:	Applicant to unauthorized absence 0730, 891029.

891111:	Applicant from unauthorized absence 1108, 891111 (12 days/surrendered).

891122:	NJP for violation of UCMJ, Article 86: Unauthorized absence for 12 days, violation of UCMJ, Article 87: Missing ship’s movement, violation of UCMJ, Article 91: Disrespect to a superior petty officer, violation of UCMJ, Article 92: Dereliction in the performance of duties.
	Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days, reduction to ENFN.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

891122:	USS SUMTER 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 three (3) punishments under the UCMJ within current enlistment.  [Extracted from Commanding Officer’s message dated 900103.]

891122:	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.  [Extracted from Commanding Officer’s message dated 900103.]

900103:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900112:	CNMPC 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 19900301 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 three occasions, and adverse counseling entries on other occasions.  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 2.  The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant could have produced evidence of continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  The Board would like to commend the Applicant for his job accomplishments and his dedication to the welfare of his children.  However, at this time, the Applicant’s evidence of post-service conduct was found not to mitigate the discharge sufficient to warrant an upgrade.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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