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

 
ex-SR, USNR
Docket No. ND04-00465

Applicant’s Request

The application for discharge review was received on 20040121.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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.  “Mitigating Circumstances

At this time I am requesting a review of my discharge.  I had no problems while on board The Wisconsin during the Gulf war.  I was a model sailor.  Then I was transferred to The Concord.  At this time I found out my wife was having an extramarital affair.  I subsequently had to file for divorce.  This was not a pleasant thing and I was going through a very bad time.  Because of my marital problems I began going with the wrong crowd.  I just did not care what I did or what the consequences.  I let my heart and my feelings bring me down. Now I realize that I was wrong in how I handled the situation and have become a better person.  Please consider my request for an Honorable Discharge.”

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

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.46 OTA and earned the NDSM, SASM, SSDR, KLM, NUC and CAM.  He was awarded NJP on 911112 for VUCMJ, Arts. 86, 87; NJP on 911130 for VUCMJ, Art. 86 (8 specs) and NJP on 920522 for VUCMJ, Art. 86 (2 specs), 92.  Following due process notifications, he discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because mitigating marital problems contributed his misconduct.  He has submitted 3 pages of additional documentation attesting to his good post-service character, hard work and family involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Character reference from Chair, Department of Philosophy, Carlow College, dated October 1, 2003
Character reference from Associate Professor of Social Work, Carlow College, dated October 16, 2003
Character reference from St. John the Evangelist Catholic Church, dated September 17, 2003
Applicant’s DD Form 214
Seventeen pages from Applicant’s service record

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:  900618		Date of Discharge:  920702

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  00  00  07

Age at Entry:  18			Years Contracted:  8

Education Level:  8 GED		AFQT:  82

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.47 (3)	Behavior:  3.40 (3)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Bronze Star, SSDR, KLM, NUC, CAM

Days of Unauthorized Absence:  57

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:

900626:	Applicant to ordered to active duty in the Seaman Apprenticeship Program.

910916:	Applicant to unauthorized absence 0700, 910916.

910916:	Applicant missed ship’s movement.

911017:	Applicant declared a deserter.

911111:	Applicant from unauthorized absence 1950, 911111 (56 days/surrendered).

911112:	NJP for violation of UCMJ, Article 86: Absence from unit 0700, 910916 to 1950, 911111, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $376.95 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

911130:	NJP for violation of UCMJ, Article 86 (8 specs): Failure to go to place of duty at 1800, 911118, 2130, 911118, 0615, 911123, 1200, 911124, 1800, 911124, 2130, 911124, 1200, 911126, and 1200, 911130.
	Award: Forfeiture of $422.55 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

911130:	Retention Warning from USS CONCORD (AFS 5):  Advised of deficiency (Failing to go to place of duty at 1800, 911118; 2130, 911118; 0615, 911123; 1200, 911124; 1800, 911124; 2130, 911124; 1200, 911126; 1200, 911130), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920421:	Applicant to unauthorized absence 0500, 920421.

920422:	Applicant from unauthorized absence 0530, 920422 (1 days/surrendered).

920522:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0500, 920421 to 0530, 920422, (2) Absent from appointed place of duty from 0500-1130, 920514, violation of UCMJ, Article 92: Failure to obey order from BM2 P_ on 920514.
	Award: Forfeiture of $392.85 per month for 2 months, restriction for 45 days.  No indication of appeal in the record.

920527:	USS CONCORD (AFS 5) 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 as evidenced by three nonjudicial punishments.

920529:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920603:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by three nonjudicial punishments.

920624:	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 19920702 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 for violations of Articles 86, 87, and 92 of the UCMJ.  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.  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 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’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.     

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, 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