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

  
ex-EMFR, USN
Docket No. ND04-00644

Applicant’s Request

The application for discharge review was received on 20040312.  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 not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  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
Applicant’s issues, as stated on the application:

1.  “Naval Council of Personnel Boards,
I, H_ D_ A_ (Applicant), hereby acknowledge that my military discharge in the United States Navy be reviewed for further advancement.  I also respectfully request a hearing without my presence at the appointed date shown by the Naval Council of Personnel Boards.  I currently reside in Gilroy, CA and have been employed by a Nike Factory Company for the time being.  I will be enrolling into the local college here in Gilroy as well.  No reoccurrences of bad conduct have proven to be recognizable under any circumstances, and further more, I have sought my ability to perform my duties in a professional and mature manner.  I have never and have not recently been convicted of a crime nor will I ever be.  My honesty shows a perfect record with working abilities, a chance to change the performance of my mistakes, and the ability to prove success otherwise.  I am asking for full support from the board, that, I be given the possibility of upgrade advances in my discharge, knowing, that my proof of employment and eagerness to succeed outside of the military through educational readiness are seen to be fit.  I feel that I had received a great opportunity from the military and realize how much it would have mean to me to stay in.  I know I did serve in Iraq for about ten months that I was there; but, it still doesn’t excuse my bad conduct from freeing me from my discharge but, I am willing to change for the people of America just like I served in Iraq.  I needed guidance and now, I have received it from family, friends, and most importantly, God.  All I need is this Naval Council of Personnel Boards, to help me succeed in finding myself as a person for our country; without, the possibility of rejection from government employed agencies or businesses.
I Thank You for Your Time,
D_ A_ H_ (Applicant)”

Documentation

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

Copy of DD Form 214
Letter from Applicant
Travel certificate
Applicant’s résumé

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	011011 – 020102       COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  020103		Date of Discharge:  030721

Length of Service (years, months, days):

	Active:    01  06  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  8 (12 months extension)

Education Level:  11			AFQT:  43

Highest Rate:  EMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (2)	Behavior:  1.00 (2)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM , NUC, Navy “E”, SSDR

Days of Unauthorized Absence:  None

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:

021212:	NJP for violation of UCMJ, Article 86:  Absent from appointed place of duty.
	Award: Forfeiture of $645.00 per month for 2 months, restriction and extra duty for 30 days (suspended 6 months).  No indication of appeal in the record.

021212:	Retention Warning:  Advised of deficiency (failure to go to appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

030102:	Suspension vacated due to further misconduct.

030125:	NJP for violation of UCMJ, Article 92:  Failure to obey a written order.
	Award: Forfeiture of $500.00 per month for 2 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

030206:	NJP for violation of UCMJ, Article 86 (3 specs):  Failure to go to appointed place of duty.
Award: 3 days confinement on bread and water.

030623:	NJP for violation of UCMJ, Article 86 (2 specs):  Absent from unit.
Award: Forfeiture of $600.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

030624:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030624:	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. 

030707:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

030711:	COMCRUDESGRU THREE 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 20030721 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles 86 and 92 and vacated suspension of punishment imposed in the first NJP on 021212 due to continued misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  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 his misconduct while on active duty.   

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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