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

ex-OSSA, USN 
Docket No. ND04-00671

Applicant’s Request

The application for discharge review was received on 20040316.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to “at the convenience of the Government.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Applicant responded and elected only a record review.

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 and reason 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.  “Dear DRB,

The following issues are the reasons I believe my discharge should be upgraded to Honorable, General Discharge under Honorable Conditions or Discharge for The Convenience of the Government from Discharge for Pattern of Misconduct.

1—Clemency is warranted because it is an injustice for me, after my combat duty in the Persian Gulf war, my physical and mental condition as hereinafter described, and my good conduct since then for me to continue to suffer the adverse consequences of a bad discharge.

2—My average conduct and efficiency ratings/behavior marks were good while in service.  I completed the A school (certificate attached) as an Operations Special Class in Jan 90, receving a grade of 92.34 and served during the Gulf War in operations on the Saratoga, handling classified information and sensitive material.

3— I had combat service, serving for 6 months at sea on the aircraft carrier the Saratoga out of Mayport, Fl., from 22 August 1990 to 16 Jan, 1991 (See attached certificate)

4— I have been a good citizen since my discharge

5— My record of NJPs/Article 15s indicates only isolated or minor offenses. The incident that instigated the discharge was my Unauthorized Abscence from Duty - June 17 to July 17 l990 (See attached for disposition of the Captain’s Mast that occurred) By way of history to that time I had one 24 hour UA.  My psychological and medical history was, while I was good health as a youth, I exhibited a low threshold of anxiety around crowds and in confined places, with a problem with anger managment.  At the present time, after some years of psychiatric treatment in hospitals and centers, I have been diagnosed as a bi-polar person with anxiety problems, though now stabilized through drug therapy and counselling and am on SSI disability.

At the time of the Captains Mast, the Captain, in an attempt to do the best for his ship and for my adverse reaction to confinement on board the Saratoga, in combat and later in port, saw my record and asked me what I wanted to do, stay in or get a discharge.  I took the option of the discharge, though I did not fully understand the impact of a discharge of this nature down the road.  My ability to serve and to make a judgement at the time being 19 was impaired by my youth and immaturity.  I received awards and decorations-graduated at the top of my A School Class, and received while in combat zone, the Navy Unit Commendation, National Defense Service Medal (1st Award) Southwest Asia Service Medal (with Bronze Star) Sea Service Deployment Ribbon (1st Award) (See attached documentation)
For the above reasons I am respectfully asking the Board to g rant an upgrade to more fully reflect the circumstances of my Navy service above described.”

Sincerely
J_ E_ N_ (Applicant)

Documentation

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

Copy of DD Form 214 (Service 7)
NAVPERS 1070/604, Navy Occupation/Training and Award History
Administrative Remarks (Page 13) referring to serving in Desert Shield Operations during August 22 1990 through January 16 1991
Commanding Officer’s NJP dated for July 25, 1990 (Page 13)
Applicant’s letter to the Board electing a record review in lieu of personal appearance hearing, dated April 21, 2004
Letter of Reference from Applicant’s father, E_ A_ N_, dated April 21, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USN (DEP)	890615 - 890809	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890810		Date of Discharge:  910709

Length of Service (years, months, days):

	Active:    01  11  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.10 (2)	Behavior:  3.20 (2)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NDSM, SASM W/BRONZE STAR, SSDR 

Days of Unauthorized Absence:  54 days

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:

890811:	Applicant briefed on Navy's policy of drug and alcohol abuse.

900319:	Applicant went on unauthorized absence at 0610, 900319, intentions unknown.

900322:	Applicant returned from unauthorized absence at 1800, 900322 and was retained onboard.

900323:	Applicant went on unauthorized absence at 1800, 900323, intentions unknown.

900329:	Applicant returned from unauthorized at 1814, 900329 and was retained onboard.

900404:	Applicant went on unauthorized absence at 0610, 900404, intentions unknown.

900405:	Applicant returned from unauthorized absence at 0610, 900405.  Charge of UA Dismissed.

900405:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0610, 900319 until 1800, 900322.  Applicant then went back on Unauthorized absence again at 1800, 900323 until 1814, 900329.
	Award: Forfeiture of $150.00 per month for 1 month, extra duty for 7 days.  No indication of appeal in the record.
	Applicant was informed of his right to decline NJP; was afforded the opportunity to consult with 27(B) counsel or civilian counsel and waived such counsel and voluntarily accepted NJP.

900405:	Applicant signed a Page 13 administration warning stating his awareness of the Navy’s policies on conduct and his eligibility for administrative separation processing.

900427:	Applicant’s charge of unauthorized absence for the dates of 900404-900405 was dismissed.

900617:	Applicant went on unauthorized absence from USS SARATOGA, Mayport, FL.

900717:	Applicant surrendered on board NTC Orlando, FL at 1100, 900717 and returned to USS SARATOGA at 2355 on TAO from TPU Orlando.

900717:	Counseling from USS SARATOGA CV60:  Advised of deficiency (a continuation of past performance may ultimately disqualify him from an honorable discharge), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900717:	Applicant received Written Technical Arrest Order.

900721:	Applicant acknowledged Understanding Standards of Conduct.

900725:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 900617 to 900717.
	Award: Forfeiture of $200.00 per month for 2 months (suspend $200.00 pay per month for 2 months for 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

910418:	Applicant went on unauthorized absence on 910418.

910506:	Applicant was apprehended by civilian authorities under suspicious persons report.  No charges pending.  Returned to military jurisdiction at RTC Orlando, FL at 2200, 910506, and returned to USS SARATOGA at 0430, 910507.

910606:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from USS SARATOGA from 910418 to 910506; violation of UCMJ, Article 92: Disobey a lawful order from Commanding Officer, USS SARATOGA; violation of UCMJ, Article 112a: Wrongfully use marijuana from 910418 until 910506.
	Award: Forfeiture of $422.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

910612:	USS SARATOGA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by your disobedience of a lawful order, and for misconduct due to a pattern of misconduct as evidenced by three Commanding Officer’s Non-Judicial punishments and for misconduct due to drug abuse as evidenced by an act of illegal or wrongful use or possession of a controlled substance(s).  [Extracted from CO’s Message 910627]

910612:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from CO’s Message 910627] 

910613:	Medical officer statement:  Findings of examination indicate Applicant is not dependent on drugs or alcohol.  Applicant is not suicidal and no further medical examination is required.  [Extracted from CO’s Message 910627]

910627:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse.

910709:	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 19910709 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).

Issues 1-3,5:  The Applicant’s discharge was based on several disciplinary infractions, not one incident.  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, 92, and 112a 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 or under honorable (general) characterization of service.  Relief denied.

Issue 4.  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 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