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

 ex-AR, USN 
Docket No. ND04-00940

Applicant’s Request

The application for discharge review was received on 20040520.  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 Veterans of Foreign Wars as the 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 did not respond.

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.  “I was not given proper representation at my Captains Mast.  My CO was not able to get my paperwork approved in Washington the first time he tried and he then he took me to Captains mast and combined the offences of two different commands into one order against me for a pattern of mis-conduct.  I was not offered a choice of talking to a proper JAG lawyer.  I was told I had no chance but to take what was offered to me or else.  My CO, I have learned has a history of mis use of him power on his enlisted men.  I have after my discharge received a BA in History from UT-Arlington in 99 also received Certification to Teach EC-4th.

I have lost sleep many a night thinking of just what went wrong with my time at VS-22.  I have learned that it was not me but the CO who had a wave of terror over his men.  I was not offered the chance to talk to legal other that the person the CO sent, he did nothing but put fear of jail time unless I signed what the CO wanted.  I need someone to help me right the wrong that has happened to me.  I had 90 or less day left before discharge and the CO wanted me to re-up.  He was real offended if you did not do two or more tours with his squadron.  I let it be known (Bad Idea of a 19 yr old kid) I wanted to go to school and not re-up.  My world was soon turned on end with the pattern of mis-conduct charges and then a second charge of missing Mast Muster.  I was on sick call and was allowed to call in to the Officer of the day.  The Co found out I did not walk the 2 plus miles to the hanger at 4/30 am and I was back at mast with no representation and was forced to leave the Navy.  I LOVE THE NAVY !!!!!!!!! HELP ME save my name!”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS).

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 10-12-04 and the following comments are hereby submitted.  

We support the applicant’s contentions that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for an upgraded discharge.”

 
Documentation

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

Email from Texas Examinations of Educators (3 pages)
Resume (2 pages)
The University of Texas at Arlington transcripts (2 pages)
Copy of school I.D.
Copy of Veteran’s of Foreign Wars letter of support, dated September 15, 2004
Copy of DD Form 214
Copies of Special Request Chits (2 pages)
Letter of reference, dated February 6, 1992
Copy of Navy wide examination results
Copies service record (12 pages)
Letter of reference, dated June 5, 2004
Letter of appreciation, dated April 11, 2000
Pictures of Applicant (2 pages)
Texas Examinations of Educator Standards documents (4 pages)
Dallas Independent School District staff credit certificate, dated March 30, 2004
LeTourneau University Student Teacher Evaluation Form, dated March 26, 2004 (2 pages)
The University of Texas at Arlington transcripts (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890119 - 890430	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890501		Date of Discharge:  920224

Length of Service (years, months, days):

	Active:    02  09  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  8 

Education Level:  10			AFQT:  41

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  2.25 (4)		OTA:  2.52

Military Decorations:  NDDM

Unit/Campaign/Service Awards:  AFEM, NUC, SSDR, SASM (2 BROZE STARS)

Days of Unauthorized Absence:  None

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:

890505:	Applicant briefed on the Navy’s Drug and Alcohol abuse program.

900205:	NJP for violation of UCMJ, Article 109: Destruction of private property, violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
	Award: Forfeiture of $100 per month for 2 months, restriction for 60 days. No indication of appeal in the record.

900205:	Retention Warning from USS LA SALLE (AGF-3):  Advised of deficiency (Violation of the Uniform Code of Military Justice, Articles 109 and 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910809:	NJP for violation of UCMJ, Article 134:  Underage drinking.
Award: CCU for 30 days, reduction to E-2.  No indication of appeal in the record.

911206:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Award: Forfeiture of $422 per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

911206:	Retention Warning from Air Anti-Submarine Squadron 22:  Advised of deficiency (Violation Article 92, Failure to obey a lawful order: To Wit – Failed to muster on time as instructed), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920121:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award: Forfeiture of $392 per month for 2 months, restriction for 45 days.  No indication of appeal in the record.

920122:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920122:	Applicant advised of rights and elected 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.

920130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

920221:	CNP directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920224:	Applicant waived VA treatment for drug and alcohol dependence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920224 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 1-2:  There is no evidence in the official record, nor did the Applicant provide any certifiable documentation that he was not afforded representation or that there existed an impropriety during nonjudicial punishment.  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 four occasions for violations of Articles 86, 92, 109, 
and 134 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.

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.   Therefore, no relief will be granted.

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 or any other evidence related 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