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

 
ex-SR, USN
Docket No. ND03-01510

Applicant’s Request

The application for discharge review was received on 20030922.  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 discharge 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 20040628.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I’m writing this letter in regard to an upgrade in my discharge I received, my behavior in the military was not good but I was going through some thing, but I managed to stay clear of anything close to that behavior since getting out including no criminal record, and now I attend a good bible-based church to get my life all the way right, so Sir/Madame would you please grant me this request for an upgrade to possible land a decent job.”
Thank You, 
R_ N_ (Applicant)

Documentation

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

Copy of DD Form 214
Reference to Applicant’s character, Pastor C_ of Gospel Temple, dated September 7, 2003
Reference to Applicant’s character, K_ H_ (friend of Applicant), undated

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
.
	Inactive: USNR (DEP)	910618 - 920302	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920303		Date of Discharge:  930915

Length of Service (years, months, days):

	Active:    01  06  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.85 (4)	Behavior:  1.55 (4)		OTA:  2.55

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  9 days

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920817:	NJP for violation of UCMJ, Article 86:  Unauthorized absence at 0800, 920807 until 1234, 920807, violation of UCMJ, Article 95:  Resist being apprehended by armed forces policeman at 2200, 920731, violation of UCMJ, Article 116:  Applicant caused a breach of the peace by creating a disturbance, violation of UCMJ, Article 134:  At 2200, 920731 at Ford hall drunk and disorderly.
	Award: Forfeiture of $392.00 per month for 2 months, restriction and extra duty for 30 days, reduction to next inferior paygrade (suspended for 6 months).  No indication of appeal in the record.

920908:	NJP for violation of UCMJ, Article 116:  Caused a breach of the peace, violation of UCMJ, Article 128:  Assault, violation of UCMJ, Article 134:  Drunk and disorderly.
	Award:  No punishments under Article 15 were actually awarded during this Mast. Administratively vacation of prior suspension and setup of administration separation processing were indicated.

920914:	Retention Warning from Naval school of dental Assisting and Technology, San Diego, CA:  Advised of deficiency aggressive physical behavior toward shipmates with a patter that is not acceptable in the U. S. Navy, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930222:	Applicant went on unauthorized absence at 0700, on 930222.

930223:	Applicant missed sailing of his vessel on 930223.

930301:	Applicant missed sailing of his vessel from San Diego, CA on 930301.

930302:	Applicant surrendered at 2351, on 930302.

930326:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, violation of UCMJ, Article 87:  (Spec I) Missing movement.  (Spec II) Missing movement, violation of UCMJ, Article 92:  Failure to obey a lawful general order or regulation, violation of UCMJ, Article 95:  Resisting apprehension, violation of UCMJ, Article 116:  Breach of the peace, violation of UCMJ, Article 117:  (Spec I) Provoking speeches and gestures.  (Spec II) Provoking speeches and gestures.  (Spec III) Provoking speeches and gestures, violation of UCMJ, Article 128:  Assault, violation of UCMJ, Article 128:  Assault and Battery, violation of UCMJ, Article 134:  Drunk and disorderly conduct.
	Award: Forfeiture of $200.00 per month for 2 months.  No indication of appeal in the record.

930526:	Retention Warning from USS HALSEY:  Advised of deficiency unauthorized absence, Spec I: missing movement, Spec II: missing movement, failure to obey a lawful general order or regulation, resisting apprehension, breach of the peace, Spec I, II and III: provoking speeches and gestures, assault, assault and batter, and drunk and disorderly conduct, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930618:	NJP for violation of UCMJ, Article 90:  Disrespect toward a superior commissioned officer; violation of UCMJ, Article 91:  Disrespect toward a petty officer, violation of UCMJ, Article 92:  Failure to obey a lawful order, violation of UCMJ, Article 134:  Wrongfully violate U.S. Navy uniform regulations.
	Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

930719:	NJP for violation of UCMJ, Article 92:  Disobey a lawful order, violation of UCMJ, Article 91:  Disrespect toward a petty officer.
Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

930722:	USS HALSEY 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 five punishments under the UCMJ within your current enlistment.  [Extracted from USS HALSEY to BUPERS message, dated 930727.]

930726:	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.

930727:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  SR N_ (Applicant) has demonstrated a gross lack of responsibility and absolutely no desire to conform to navy regulations or adapt to military life.  He has been given several chances to correct his behavior, and he has not shown any substantial improvement or effort to behave more responsibly or maturely.  SR N_ (Applicant) exhibits no potential for future naval service.  Expeditious ADSEP with OTH characterization is strongly recommended.

930813:	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 19930915 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 available 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.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief not warranted.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as other than honorable is warranted when significant 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 was marred by the award of nonjudicial punishment (NJP) on 4 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included violations of articles 86, 87, 90, 91, 92, 95, 116, 117, 128, and 134.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore 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.  At this time, the Applicant has not provided sufficient documentation of post service matters for the Board to consider.  Therefore, no relief will be granted.

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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, Change 5, effective 05 Mar 93 until 21 Jul 94), 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