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

  
 ex-FR, USN
Docket No. ND04-00819

Applicant’s Request

The application for discharge review was received on 20040421.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a personal appearance hearing review before a traveling panel closest to Columbus, GA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington National Capital Region.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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.  My participation in the Montgomery G.I. Bill

2.  Cause and Reason for my Separation

3.  Civilian accomplishment, since being separated from active duty.”

Documentation

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

Letter from Applicant, dated May 20, 2004 (2 pages)
Applicant’s DD Form 214
Copy of Georgia Commercial Driver’s License
Copy of Certificate of Completion (Combination Welder), dated August 5, 1992
Copy of Adult Education Diploma (Accounting), dated July 16, 1999
Copy of Tulsa Welding School Enrollment Agreement
Copy of Customer Work History Inquiry Listing, dated May 4, 2004 (4 pages)
Copy of Unofficial Transcript from West Georgia Tech, dated May 5, 2004(2 pages)
Copy of Certificate of Recognition (Perfect Attendance) 1ST Quarter 2003 

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:  930329		Date of Discharge:  950811

Length of Service (years, months, days):

	Active:    02  04  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.70 (2)	Behavior:  2.70 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NER(3), NDSM, SASM(with bronze star), 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 3630600.

Chronological Listing of Significant Service Events:

941103:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful order.
Award: Reduction to pay grade E-1 (suspended for 6 months), restriction and extra duty for 7 days.  No indication of appeal in the record.

941114:	Retention Warning from [USS SHILOH (CG-67)]:  Advised of deficiency (Failure to obey a lawful order due to an inability to respect the authority invested in the petty officers and officers appointed over you), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950228:	Punishment of RIR to E-1 suspended at CO’s NJP of 941103 vacated due to continued misconduct.
 
950228:	NJP for violation of UCMJ, Article 92: Failure to obey lawful written order, violation of UCMJ, Article 92: Dereliction in the performance of duties.
Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

950403:	NJP for violation of UCMJ, Article 128: Assault, aggravated, inflicting grievous bodily harm.
Award: Restriction and extra duty for 10 days.  No indication of appeal in the record.

950411:	Retention Warning from [USS SHILOH (CG-67)]:  Advised of deficiency (Unsatisfactory personal behavior, failure to obey lawful orders and written orders and failure to conduct duties and responsibilities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950601:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duty, violation of UCMJ, Article 91: Disrespect toward a Petty Officer.
Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

950601:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

950616:	NJP for violation of UCMJ, Article 91: Disobeying a Petty Officer, violation of UCMJ, Article 92: Disrespect toward a Petty Officer.
	Award: Confinement for 3 days Bread and Water.  No indication of appeal in the record.

950631:	USS SHILOH (CG-67) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950713:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by five NJP’s within current enlistment.

950808:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950811 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.

Issue 2:  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 five occasions for violations of Articles 91, 92, and 128 of the UCMJ and an adverse counseling entry on another occasion.  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 3:  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.  Therefore, relief is inappropriate. 

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  

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 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023