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

 ex-SA, USN
Docket No. ND04-01330

Applicant’s Request

The application for discharge review was received on 20040827.  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.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041105.  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 believe that my discharge from the US Navy was erroneous.  I was discharged after I was late to the ship 3 times 15 to 30 minutes late work within a couple of weeks.  I never was ever written up before I got to my command.  They were very belligerent.  I had took BUDS training but didn’t make it.  Right after BUDS I broke my leg and after I recovered was sent the USS Cape Cod.  I was told that wouldn’t make it there.  When I put in to retake BUDS , my Division Officer told me that ship wouldn’t allow me leave and made a differicult working environment.  My Command Masterchief was against ne because I did apply to BUDS/Seals.  I surmise that he had a run-in or two with them during his career.  While I was aboard the USS Cape Cod, I was given a letter of appreciation while on board for my work ethics by the commander of the ship.  I feel that I was railroaded out of the Navy for those reasons.

Additional issues submitted by Applicant’s representative the AMERICAN LEGION:

“1.  Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with an 2.80 OTA and earned the SSDR. He was awarded NJP on 890622 for VUCMJ, Arts. 86 (3 specs); NJP on 900201 for VUCMJ, Art. 92, 134 and NJP on 900412 for VUCMJ, Art. 86, 92.  Following due process notifications, he discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his command abused it’s authority by writing him up for minor offenses and then discharging him UOTHC when his overall service record supports an HD. He has not submitted any additional documentation beyond copies of his service record for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

Documentation

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

Copy of DD Form 214
Copy of letter from CO, USS CAPE COD, dtd 8 Mar 1990
Copy of Enlisted Performance Evaluation Report, dtd 89 Feb 16

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  880309		Date of Discharge:  900504

Length of Service (years, months, days):

	Active:    02  01  26
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  9			AFQT:  50

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

890622:	NJP for violation of UCMJ, Article 86: Unauthorized Absence (3 Specs) 1 June, 2 June, and 5 June 1989
	Awarded: 30 days correctional custody.   No indication of appeal in the record. [Extracted from USS CAPE CODE msg 262648Z Apr 90]

900201:	NJP for violation of UCMJ, Article 92: Charge I - failure to obey a lawful order issued by a Second Class Petty Officer to wit:  failure to wear his hat correctly; violation of UCMJ, Article 134: Charge I - wrongfully leave his U.I. watchstander unattended on the third deck fantail while underway. 
Award:  Restriction and extra duty for 20 days, reduction to E-2, forfeiture of $75.00 pay per month for 1 month.  Reduction to E-2 suspended for 6 months.    No indication of appeal in the record.

900223:	Reduction to E-2 vacated this date.

900412:	NJP for Charge I - violation of UCMJ, Article 86 without authority, fail to go at the time prescribed to appointed place of duty to wit: extra military instruction for PQS qualifications; Charge II - violation of UCMJ, Article 92: two specifications of failing to obey lawful orders issues by Chief Petty Officers. 
Award: Forfeiture of $100.00 per month for 1 month(s), restriction and extra duty for 15 days.  Forfeiture suspended for 3 months. No indication of appeal in the record.

900418:	Commanding Officer, USS CAPE COD(AD 43)  notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by (1) Commanding Officer’s Nonjudicial Punishment held 23 June 1989 for violation of the UCMJ Article 86, three Specifications of unauthorized absence on 1 June, 2 June and 5 June 1989; (2) Commanding Officer’s Nonjudicial Punishment held 1 February 1990, Charge I – Article 92, fail to obey a lawful order issued by a second class petty officer; Charge II – Article 134, wrongfully leave under instruction watchstander unattended on the third deck fantail while underway; (3) Commanding Officer’s Nonjudicial Punishment held 12 April 1990, offenses occurred on 3 April 1990, Charge I – Article 86, without authority, fail to go at the time prescribed  to appointed place of duty to wit; extra military instruction for PQS qualifications; Charge II – Article 92, two Specifications of failing to obey lawful orders issued by Chief Petty Officers.

900420:	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.

900426:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

900427:	CNMPC 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 19900504 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.  The Applicant contends that his discharge was inequitable because he “was discharged after I was late to the ship 3 times 15 to 30 minutes late work within a couple of weeks.”  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 3 nonjudicial punishment proceedings for violations of Articles 86, 92, and 134 of the UCMJ that occurred between June 1989 and April 1990.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that his “Command Masterchief was against me” and that he was “railroaded out of the Navy” for requesting another opportunity to attend BUDS training which  resulted in his other than honorable discharge.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Command Masterchief  or anyone else for that matter in the discharge processing.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

Issue 3.  The Applicant’s Representative has requested that the Board consider the Applicant’s post service.    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.  As of this time, the Applicant has not provided any documentation

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 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