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

 ex-SR, USN
Docket No. ND04-00610

Applicant’s Request

The application for discharge review was received on 20040324.  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 did list civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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

Submitted by Applicant’s counsel subsequent to submission of application:

“1.  Was imposition of nonjudicial punishment upon Applicant without counsel or opportunity for trial proper?”

2.  Was Applicant’s waiver of rights to counsel and board of officers in discharge proceedings proper?

3.  Did Applicant’s mental disorder cause his inability to adjust to naval service?”

Documentation

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

Copy of DD Form 214
Legal Brief, Exhibits A & B, prepared by counsel

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000908 - 000928	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  000929		Date of Discharge:  010914

Length of Service (years, months, days):

	Active:    00  06  29 (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  *NMA	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  118

*No marks available in the record

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:

010214:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Award: Restriction for 35 days (Suspended 15 days for 6 months).  No indication of appeal in the record.

010215:	Retention Warning:  Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 86-UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010828:	NJP for violation of UCMJ, Article 86 (4 Specifications):  Unauthorized absence, violation of UCMJ, Article 87 (2 Specifications): Missing ships movement.
	Award: Forfeiture of half months pay per month for two months, restriction and extra duty for 45 days.  No indication of appeal in the record.

010830:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010830:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all additional rights. 

010905:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

010907:	Commander, Naval Surface Group, Pacific Northwest 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 20010914 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).

Issue1:  The Applicant’s counsel questioned whether the imposition of nonjudicial punishment upon the Applicant without counsel or opportunity for trial proper?  The decision of the Applicant’s Commanding Officer to adjudicate his offenses at NJP vice court-martial was in accordance with regulations and a proper exercise of his authority.  The “vessel exception” contained in Article 15 of the UCMJ, allows a Commanding Officer to refer cases to NJP regardless of the vessel’s locality.  On 20010828 the Applicant signed the Preliminary Inquiry Report (NAVPERS 1626/7) stating that if he felt the imposition of nonjudicial punishment to be unjust or disproportionate to the offenses charged against him that he had the right to immediately appeal his conviction to the next higher authority within 5 days.  The Applicant did not exercise his right to appeal the imposition of nonjudicial punishment.  Relief denied.

Issue 2:  The NDRB, under its responsibility to examine the propriety and equity of an
Applicant’s discharge, is authorized to change the character of service and/or the reason 
for discharge if such change is warranted.  On 20010830 the Applicant was advised of 
his rights with regard to prepare his administrative separation and elected not to consult with counsel certified under UCMJ Article 27B, and 
elected to waive all additional rights. There is no evidence of impropriety or inequity in 
the Applicant’s discharge.  The Applicant’s misconduct is clearly documented. Relief 
denied. 

Issue 3:  Administrative separation for misconduct takes precedence over possible discharge for other reasons including separation for medical reasons.  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 two occasions for unauthorized absences that totaled 118 days and for missing the movement of his ship.  While he may feel that a mental condition was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief 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.  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 documentation to support any claims of post-service accomplishments 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