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

  ex-AR, USN
Docket No. ND05-00025
 
Applicant’s Request

The application for discharge review was received on 20040927.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228.  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

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

1.  “9. Error or Injustice Particulars

I was in the Navy for approximately 22 months when a new Division Officer was assigned.  This was the Lt’s first command and he chose to show his authority by making an example of me.  He wrote me up for UA a number of times when I was merely a couple of minutes late for muster.  At the ensuing Captain’s Mast, a Petty Officer or Duty Section Leader or the like would typically testify on my behalf and inform the Captain that they knew where I was and that my absences were not excused.  Our Chief Legal Officer, our former Division Officer also testified on my behalf, informing that Captain the he could not understand why I was constantly receiving Captain’s Masts since the new Lt. took over.  The former Division Officer, Lt. S_ W_, testified that he had no problems with my performance when I was under his command.

After a number of weeks of these baseless allegations I did go AWOL, I asked the new Lt. for leave due to the death of my grandfather.  He denied it.  Being full of grief at the loss of my grandfather and having had the previous problems with the Lt., I left ship and attended the funeral without permission.  I voluntarily returned and turned myself in within a week or so.

After this incident, Lt. W_ informed me that the new Lt. would continue to make my life difficult for any and every reason, whether real or not.  Lt. W_ indicated that he could help arrange a General Discharge.  Fearful that I would continue to be unjustly singled out, I accepted Lt. W_’s offer.

Unfortunately, the discharge was not as the Lt. had promised and I instead received an UOTH discharge based upon a pattern of misconduct – a pattern which in reality consisted of only once incidence of being AWOL for approx. one week to attend my Grandfather’s funeral.

Based upon the above information, please upgrade my discharge to Honorable as that is the true characterization of my service up until the new Lt. was appointed to lead my Division.  In the alternative, please upgrade my discharge to General.                            

11.b  Why the Board Should Consider Application

It is with great reluctance that I approach the board to request this change. I had hoped to put this behind me after my discharge, but this unjust characterization of my service continues to affect me. I want to be able to acknowledge my time in the Navy, but my type of discharge makes me hesitant to bring it up and doubtful to discuss it during employment applications and such. I have also matured over the years and while I realize I am not without fault, an injustice was done to me.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920124 - 920823	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920824		Date of Discharge:  941020

Length of Service (years, months, days):

	Active:    02  01  27 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  80

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)		Behavior:  3.00 (3)		OTA:  3.26

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  12

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:

920902:	Retention Warning from [RTC, San Diego, CA]:  Advised of deficiency (Fraudulent entry due to failure to disclose your pre-service drug involvement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940317:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 940228 to 940311 (12days/S).
	Award: Forfeiture of $416.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

940428:	Retention Warning from [USS TARAWA (LHA-1)]:  Advised of deficiency (Beginning pattern of misconduct as evidenced by your NJP of 940317 for violation of UCMJ, Article 86, unauthorized absence from 940228 to 940311), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940630:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730-0810, 940624.
	Award: Forfeiture of $466.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

940819:	NJP for violation of UCMJ, Article 86: Absence without leave from 0645- 1241, 940819.
	Award: Restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

940922:	NJP for violation of UCMJ, Article 86: Absence without leave, on four different occasions, without authority, missed restricted men’s muster.
	Award: Confinement at NAS, Miramar, CA Brig for 3 days.  No indication of appeal in the record.

940927:	USS TARAWA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct [Extracted from CO’s message].

940927:	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 [Extracted from CO’s message].

940930:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

941011:	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 19941020 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.  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 numerous unauthorized absences.  While he may feel that unfair treatment by his chain of command was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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