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

  ex-SR, USNR
Docket No. ND05-00558

Applicant’s Request

The application for discharge review was received on 20050214.  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 discharge 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 20050601.  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.  “It has been 12 years since I was discharged from the service and I have become a model citizen also I still deny the reason for Discharge!  I have a great job & life but this is the one thing that bothers me is my Discharge.”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Inactive: 901228 – 910820 (DEP)	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900821		Date of Discharge:  930317

Length of Service (years, months, days):

	Active:    01 06 27
	Inactive:  00 07 23

Age at Entry:  19			Years Contracted:  2

Education Level:  12			AFQT:  53

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)		Behavior:  3.10 (2)		OTA:  3.30

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/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901228:	Applicant reported for initial tour of active duty.

911206:	Applicant reported for duty aboard USS Flint (AE-32).

920216:	Applicant on unauthorized absence 0645-0845, 920216.  

920418:	Applicant on unauthorized absence 0100-0800, 920418.  

920424:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Restriction and extra duty for 20 days.  No indication of appeal in the record.

920424:	Retention Warning from USS FLINT (AE 32):  Advised of deficiency (Unauthorized absence and continued poor reliability and poor military bearing will not be tolerated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921223:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful regulation, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 134: Drunkenness and disorderly conduct.
	Award: Forfeiture of $440.25 per month for 1 month, restriction for 45 days, and extra duty for 15 days.  No indication of appeal in the record.

930205:	NJP for violation of UCMJ, Article 117 (3 specs): (1) Wrongfully use provoking gestures on 0800, 930122, to wit: throwing an orange at SN, (2) Wrongfully use provoking gestures on 0800, 930122, to wit: pushing SN, (3) Wrongfully use provoking words on 0800, 930122, to wit: “Fuck you” towards SN, violation of UCMJ, Article 108: Damaging military property, violation of UCMJ, Article 121:Larceny of $440.00 on 0745, 930203, the property of MM3, violation of UCMJ, Article 91 (2 specs): (1) Disrespectful in language toward BM1 on 1230, 930202, by saying to him “Fuck Off”, (2) Disrespectful in language toward BM1 on 1230, 930202, by saying to him “Go fuck yourself”, violation of UCMJ, Article 92 (4 specs): (1) Failure to obey a lawful order or written order issued by BM1 on 1230, 930202, to wit: “Go work for Petty Officer S_” by wrongfully saying “I will not work for any Petty Officer in Second Division”, (2) Failure to obey a lawful order issued by CDR S_, to wit: you are restricted to the USS FLINT (AE 32) on 2300, 930203 by attempting to leave USS FLINT (AE-32), (3) Failure to obey a lawful order or written order issued by BM2 on 2300, 930203 by wrongfully attempting to leave USS FLING (AE-32), (4) Failure to obey a lawful order or written order issued by BM2 on 2300, 930203 by wearing civilian clothes onboard USS FLINT (AE 32).
	Award: Forfeiture of $456 per month for 2 months, bread and water for 3 days, reduction to E-1.  No indication of appeal in the record.

930212:	USS FLINT (AE 32) notified Applicant of intended recommendation for administrative separation by reason of misconduct due to a pattern of misconduct as evidenced by the three nonjudicial punishments under the UCMJ in your current enlistment.  If separation is approved, the characterization of your service may be under Other Than Honorable conditions.

930212:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930218:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930305:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

930311:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930317:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930317 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:  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 1 retention warning, 4 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence, 3 specs), 92 (failure to obey lawful order, 5 specs), 107 (false official statement, 1 spec), 134 (drunkenness and disorderly conduct, 1 spec), 117 (wrongful use of provoking gestures, 3 specs), 108 (damaging military property, 1 spec), 121 (larceny, 1 spec) and 91 (Disrespect, 2 specs) of the UCMJ.  Your violation of 3 specifications meets the criteria for discharge by reason of a pattern of misconduct, additionally violation of articles 107, 108, 121, 91 and 92 each meet the criteria for discharge by reason of commission of a serious offense and may be processed as punitive resulting in a bad conduct discharge.  Normally a pattern of misconduct is characterized as under Other Than Honorable Conditions.  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.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 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 documentation for the Board to consider.

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 15560C, effective 15 Aug 91 until 
04 Mar 93), 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