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

 ex-SA, USN
Docket No. ND05-00320

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214.  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

Applicant’s issues, as stated on the application:

1.  “When I went on Active I was very young and immature this was my first time away from home. I got in fight but since my time on active duty, I have mature.  I am requesting that the Board conduct a review of my discharge base on my military personnel file & requested that the Board change my discharge to honorable.”

Documentation

In addition to the service record, NO DISCHARGE AUTHORIZATION AVAILABLE, 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)	941209 - 941219	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  941220		Date of Discharge:  971202

Length of Service (years, months, days):

	Active:    02  11  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)		Behavior:  3.00 (1)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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:

950605:	Retention Warning:  Advised of deficiency (IAW BUPERS Washington, DC MSG 311927Z MAY 95 you are being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into Naval Service as evidenced by your failure to disclose prior service conviction for misdemeanor possession of a controlled substance and petty larceny on 930731), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
   
961209:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 107, False official statements; violation of UCMJ, Article 128, Assault consummated by a battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

961209:	NJP for violation of UCMJ, Article 107: False official statements; violation of UCMJ, Article 128: Assault consummated by a battery, in that SN M_ D. F_, did on or about 2300, 961201, at the Galaxy Night Club, located at Panama City, unlawfully grab FN S_ in a head lock and strike him on the head twice with his fist.  
Award: Forfeiture of $490.00, reduction to OSSA, 45 days extra duty and restriction to the limits of USS TICONDEROGA (CG-47).  No indication of appeal in the record.

971024:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery, in that SN M_ D. F_, did on or about 0805, 971024, unlawfully strike SH2 H_ in the face, on the shoulders and arms with his fist.  
Award: Forfeiture of $250.00 pay per month for 2 months, 45 days extra duty and restriction to the limits of USS TICONDEROGA (CG-47), reduction to E-2.  No indication of appeal in the record.

971024:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

971024:	Applicant advised of rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

971125:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

971126:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation; violation of UCMJ, Article 107: False official statements; violation of UCMJ, Article 134: Bribery and graft; violation of UCMJ, Article 134: Soliciting another to commit an offense.
	Award: 3 days confinement on Bread & Water, forfeiture of $505.00 pay per month for 2 months.  No indication of appeal in the record.

971202:	Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct; authority: MILPERSMAN 3630600 per DD Form 214.

NO DISCHARGE AUTHORIZATION AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971202 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 three occasions for disobedience of lawful orders, false official statements, two assaults, bribery, graft and soliciting another to commit an offense.  While he may feel that his youth and immaturity at the time were factors 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, or 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 14, effective 03 Oct 96 until 11 Dec 97), 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 V, Para 502, Propriety.

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

D.  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.

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