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

  FOR OFFICIAL USE ONLY

ex-PMFR, USN
Docket No. ND05-00005

Applicant’s Request

The application for discharge review was received on 20040927.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region and requested that his characterization of service received at the time of discharge be changed to honorable.  The applicant did not designate a representative on the DD 293, however, subsequent to the application representation was obtained from the Disabled American Veterans.  The personal appearance hearing was originally scheduled for 20051026.  On 20051024 the NDRB received the Applicant’s request to postpone his hearing in an effort to “procure necessary documentation”.  The Applicant’s request was granted on 20051025 for a hearing to be scheduled in April 2006.  

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060403.  At the hearing the Applicant was allowed 14 additional days to provide further documentation supporting his post service assertion of superior post service conduct.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

The Applicant’s Disabled American Veteran’s representative submitted the following issue which superseded the Applicant’s previously submitted issues:

“I request this Board upgrade my discharge to Honorable or General discharge due to clemency.  I have become more productive in society; have a family; good standing in the community; have completed volunteer work and my behavior / conduct has been positive with no violations since discharge from the military service over 12 years ago.”

Documentation

In addition to the service and medical records, the following documents, submitted by the Applicant, were considered:

Applicant’s letter addressed to BCNR, dated September 21, 2004 (2 pages)
Applicant’s DD Form 214
Character reference letter from R_ E_, Jr. Esquire, dated August 27, 2002
Character reference letter from J_ W_ (Mother), dated July 24, 2002
Character reference letter from E_ G_, Ed. D., President, Florida Metropolitan University, dated July 17, 2002
Character reference letter from P_ G_ (Brother), dated July 15, 2002
Character reference letter from R_ E_, dated July 14, 2002
Character reference letter from S_ M_ (Sister), dated July 14, 2002
Character reference letter from D_ M_, Business Department Head, Florida Metropolitan University, dated July 13, 2002
Character reference letter from SSG M_ S_, U.S. Army National Guard, dated July 12, 2002
Character reference letter from ABHAN S_ M_, USN, dated July 12, 2002
Character reference letter from P_ A_, dated July 12, 2002
Character reference letter from C_ T_ (Aunt), dated July 10, 2002
Character reference letter from T_ P_, dated July 10, 2002
Character reference letter from M_ P_, Dean, Florida Metropolitan University, dated July 10, 2002
Character reference letter from K_ E. S_ and G_ S_ (Brother and Sister-in-law), dated July 09, 2002
Character reference letter from J_ B. A_, Associate Dean of Student, Florida Metropolitan University, Jacksonville Campus, dated July 08, 2002
Character reference letter from C_ J_, dated July 08, 2002
Character reference letter from D_ and V_ D_, dated July 08, 2002
Character reference letter from A_ B_ (Aunt), dated July 06, 2002
Character reference letter from Reverend M_ L. G_, dated July 01, 2002
Character reference letter from T_ M_, Principal, Wayman Academy of the Arts, dated June 28, 2002
Character reference letter from G_ P. A_, Esquire, dated June 18, 2002
Character reference letter from O_ and S_ P_, dated June 15, 2002
Character reference letter from B_ P_, dated June 15, 2002
Character reference letter from S_ T_ C_ (Wife), dated March 11, 2002
Character reference letter from C_ F_, SSG, USAR, dated March 11, 2002
Character reference letter from T_ S_, Registrar, Florida Metropolitan University, dated March 11, 2002
Character reference letter from D. R_, Pastor, dated March 09, 2002
Character reference letter from R_ L_, Administrations Specialist, Florida Metropolitan University, undated
Character reference letter from J_ B. A_, Instructor/Assistant Dean of Students, Florida Metropolitan University, dated October 14, 2001
Character reference letter from T_ S_, Registrar, Florida Metropolitan University, undated
Character reference letter from R_ I_, Admissions Representative, Florida Metropolitan University, dated March 09, 2002
Character reference letter from S_ M. R_, Instructor, Florida Metropolitan University, undated
Commencement Ceremony program, American InterContinental University, dated June 18, 2005 (2 pages)
Criminal history record check of Maryland, C_ S_, Director, Criminal Justice Informations Systems, dated September 19, 2005
Finger print card, dated March 30, 2005
Criminal history record check, St. John’s County Sheriff’s Office, dated March 11, 2005 (3 pages)
Criminal history record check, Virginia Beach, Virginia, March 25, 2005 (5 pages)
Criminal history record check, Virginia Beach, Virginia, February 24, 2003 (2 pages)
Unofficial transcript from AIU – Hoffman Estates, IL, dated February 10, 2005 (6 pages)
Transcript from Florida Metropolitan University, dated February 14, 2005 (3 pages)
Character reference letter from D_ B_, Manager, Jermantown Shell, undated
Character reference letter from E_ S_, Field Service Supervisor, Cox Communications, Northern Virginia, dated April 15, 2006
Character reference letter from S_ H_, Director of Training, Ball2Feet, Inc, dated April 09, 2006
Character reference letter from S_ M. P_, Beaches Adult Soccer League, dated March 15, 2006
Character reference letter from J_ R_, VP/WIU, undated (2 pages)
Child Support overpayment notice from C. G_, The City of New York, Child Support Services Representative, dated December 12, 2004 (9 pages)
Character reference letter from S_ V. W_, dated April 12, 2006
Character reference letter from S_ B_, undated
Applicant’s resume’ (3 pages)
Order for change of name, dated June 11, 2004 (3 pages)
Character reference letter from N_ F_, undated
Division of Child Support, Norfolk, Virginia, dated April 06, 2006 (3 pages)  

PART II - SUMMARY OF SERVICE

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

	Inactive:  19910528 - 19910621
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910622		Date of Discharge:  19940923

Length of Service (years, months, days):

	Active:    03 03 01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  2 days
	Confinement:		  None

Age at Entry:  29

Years Contracted:  4

Education Level:  12				AFQT:  65

Highest Rate:  PM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.7 (3)	Behavior:  2.4 (3)		OTA:  3.00 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Navy “E” Ribbon (4th), Expert Pistol Shot Medal, Expert Rifleman Medal

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

911101:	Applicant violated UCMJ, Article 108 (damage to military property) by punching a hole in the wall.

911107:	NJP for a violation of the UCMJ, Article 108 (damage to military property, on 911101).
	Award:  Forfeiture of $150.00 pay per month for 1 month and extra duty for 5 days.  No indication of appeal in the record.

920414:	Retention Warning:  Advised of deficiency (physical and emotional abuse of spouse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920902:	Applicant to unauthorized absence at 0545 on 920902.

920904:	Applicant from unauthorized absence at 0600 on 920904 (2 days/surrendered).  EAOS changed to 950621.

921001:	NJP for a violation of the UCMJ, Article 86 (unauthorized absence, from 920902 until 920904).
	Award:  Forfeiture of $457.00 pay per month for 1 month, restriction and extra duty for 7 days.  Forfeiture suspended for 3 months.  No indication of appeal in the record.

921204:	Applicant violated UCMJ, Article 113 (misbehavior of a sentinel, by sleeping at his post), on 921204.

921215:	NJP for a violation of the UCMJ, Article 113 (misbehavior of a sentinel, on 921204).
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  15 days of restriction, extra duty and reduction suspended for 90 days.  No indication of appeal in the record.

921218:	Retention Warning:  Advised of deficiency (misbehavior of sentinel.), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

930209:	Applicant unauthorized absent from 0545 until 0625 on 930209.

930210:	Applicant unauthorized absent from 0545 until 0910 on 920210.

930218:	Suspended reduction in pay grade awarded at CO’s NJP on 921215 vacated due to continued misconduct.

930218:	NJP for violations of UCMJ, Article 86 (unauthorized absence, 2 specifications)
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

930803:	Applicant violated UCMJ, Article 80 (attempts) by attempting to sexually assault a woman, not his wife.

931004:	U. S. Naval Investigative Service (NIS) report of investigation closed ICO PMFA C_ (Applicant).	

931123:	BUPERS advised AFDM TEN RESOLUTE that NIS investigation ICO PMFA C_ contained matters, which may involve mandatory administrative separation.

940106:	AFDM TEN RESOLUTE advised BUPERS that Naval Legal Office, Norfolk, VA had reviewed the NIS report ICO PMFA C_ (Applicant) and recommended an Article 32 for service member.

940414:	Article 32 investigation conducted at Naval Legal Services Office, Naval Base Norfolk on 940414.

940513:	Applicant unauthorized absent from 0545 until 0630 on 940523.   

940517:	NJP for violations of UCMJ, Article 80 (attempts, attempt to sexually assault a woman; not his wife) and Article 86 (unauthorized absence, on 940513).
	Award:  Forfeiture of $511.00 per month for 2 months, restriction for 45 days, extra duty for 45 days, and reduction to E-1.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

940819:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

940819:	Applicant advised of rights, elected not to consult with counsel, and to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940819:	Commanding Officer, COMSUBRON EIGHT recommended to BUPERS that PMFR C_ (Applicant) be discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “After thorough review of the entire case of the SNM, I have determined that the facts and circumstances in this case warrant discharge with a characterization of service of other than honorable conditions.”

940908:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970113:	NDRB Docket Number ND96-01293, document review conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940923 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize his service as honorable or general.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  The Applicant’s service record documented five nonjudicial punishment proceedings for violations of the UCMJ Article 80 (attempts, attempt to sexually assault a woman), Article 86 (unauthorized absence, 4 specifications), Article 108 (damage to military property), and Article 113 (misbehavior of a sentinel).  Reference (A) defines the misconduct for which the Applicant was discharged, “pattern of misconduct”, as three or more punishments under the UCMJ within the current enlistment.  Furthermore, reference (A) dictates that the service of a member separated for a pattern of misconduct shall normally be characterized as under other than honorable conditions.  A characterization of service as honorable is not authorized unless the Applicant's record is otherwise so meritorious that any other characterization would be clearly inappropriate.  In the Applicant’s case the record clearly documented the pattern of misconduct for which he was separated.  The Board could discern no impropriety or inequity.  Relief denied.

The Applicant contends that his characterization of service is inequitable based upon his service to society.  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 Naval service.  The NDRB is authorized 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 submitted 41 character reference letters from friends, family members, clergy, employers, co-workers, college instructors, college administrators, and volunteer organizations to whom he had served.  He also submitted college transcripts, police records checks, proof of current child support payments, and his resume.  The Board commends the Applicant’s personal achievements and recognized his volunteer service to the community.  However, after careful consideration of the testimony and documentation, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied. 

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for each violation of the UCMJ, Articles 108 and 113.

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

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

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