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

    ex-EMFA, USN
Docket No. ND05-00217

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  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 (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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.  “The discharge I received does not characterize the overall service performance of my duty in the United States Navy.  I’m also seeking employment with the US Postal Service which requires Honorable Service.  I served almost 99% of my active duty term being discharged only 44 days short of full term enlistment.  It was a decision my Captain gave me to decide and without any representation or leadership I made a grave mistake; one that I am willing to do my best to change and sacrifice to do so.  My discharge was based on a pattern of misconduct due to 3 separate incidents of lost time.  I’m not going to try to justify those times were right of me, but only say that I did the best I could for my country as a young man away from home the first time and believe I simply mad some bad decisions for which I regret.

I truly love my country and would proudly serve my military again if possible or needed.  I made some bad decisions early in life that I can not take back; this is one I hope to correct.  In the civilian world I’ve done good for myself.  I have a wife of 8 yrs and a only son of six years old, I will advise him about the military in a favorable way if his choice.  The job market today is tough an upgrade of my discharge would allow my certainty in employment with the US Postal Service and give me the opportunity to better my life.  I believe myself to be a loyal American citizen and loving family man who is trying to make up for some poor judgements and better his life for this families future.  I am currently unemployed, with this discharge upgraded I am certain I will be employed by our local US Post office.”

Documentation

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

Character reference, dated February 28, 2004
Character reference, dated February 18, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881107 - 890820	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890821		Date of Discharge:  930708

Length of Service (years, months, days):

	Active:    03  10  18	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  37/38

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.47 (6)		Behavior:  3.47 (6)		OTA:  3.50

Military Decorations:  NAM

Unit/Campaign/Service Awards:  SSDR (2), NDSM, SASM (2), NUC, JMUC, LoC, KLM, NER

Days of Unauthorized Absence:  13

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:

900105:	NJP for violation of UCMJ, Article 121: Theft of Navy Exchange property on 891201.
	Award: Forfeiture of $50 per month for 1 month.  No indication of appeal in the record.

900105:	Retention Warning from [Service School Command, Great Lakes, IL]:  Advised of deficiency (Poor military performance, did steal one (1) hooded Navy sweatshirt, the property of the Naval Exchange), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920427	Applicant to unauthorized absence 0700, 920427.

920427:	Applicant missed ship’s movement.

920429:	Applicant from unauthorized absence 1630, 920429 (2 days/surrendered).

920511:	NJP for violation of UCMJ, Article 86: Unauthorized absence (2 days), violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $150 per month for 2 months, restriction for 15 days.  No indication of appeal in the record.

920516:	Retention Warning from [USS SAN JACINTO (CG 56)]:  Advised of deficiency (Fail to be at appointed place of duty.  Disrespect toward superiors.  Uncooperative attitude), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930316:	Applicant to unauthorized absence 0700, 930316.

930323:	Applicant from unauthorized absence 0615, 930323 (7 days/surrendered).

930325:	NJP for violation of UCMJ, Article 86: Unauthorized absence, absent from appointed place of duty.
	Award: Restriction for 30 days, reduction to E-2.  No indication of appeal in the record.

930519:	Applicant to unauthorized absence 0800, 930519.

930524:	Applicant from unauthorized absence 0600, 930524 (4 days/surrendered).

930529:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 930519 to 0600, 930524, violation of UCMJ, Article 91: Disrespect towards a Master Chief Petty Officer on 930529.
	Award: Restriction for 60 days.  No indication of appeal in the record.

930604:	USS SAN JACINTO (CG 56) 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 as evidenced by all punishments under the UCMJ in your current enlistment.

930604:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930609:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930617:	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 19930708 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 four nonjudicial punishment (NJP) proceedings for violations of UCMJ, Articles 86 (Unauthorized absence), 87 (Missing ships movement), 121 (Theft of Navy Exchange property) and 91 (Disrespect to a Masterchief Petty Officer).  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 upgrade of the Applicant’s characterization of service.  Relief denied.

The Board has no authority to upgrade a discharge for the purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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.  Relief not warranted.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.   

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.  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 5, effective 05 Mar 93 until 21 Jul 94), 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