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

FOR OFFICIAL USE ONLY

  ex-OSSR, USN
Docket No. ND05-00890

Applicant’s Request

The application for discharge review was received on 20050504.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  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 and reason for 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

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on seven isolated incidents in 108 months of service with no other adverse action.”

Documentation

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

Employment Reference Letter, undated 
Letter of Recommendation dtd April 26, 2005
Police Record Report dtd April 25, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (Dep)		19900430 – 19901003		COG
	Active:   USN 			19901004 – 19941002		HON

Period of Service Under Review:

Date of Enlistment:  19941003		Date of Discharge:  19990804

Length of Service (years, months, days):

	Active:    04  10  01
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	Unknown
	Confinement:			Unknown

Age at Entry:  21

Years Contracted:  5 

Education Level:  12				AFQT:  34

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.25 (4) 		Behavior:  1.75 (4) 		OTA:  2.42  5.0 scale
		  3.6   (1)			       3.4   (1)			3.8    4.0 scale
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Joint Meritorious Unit Award, Meritorious Unit Commendation, National Defense Service Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbons (3), Kuwait Liberation Medal (Kuwait).

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

941003:	Reenlisted this date for a term of 5 years.

950330:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Restriction and extra duty to USS ARKANSAS (CGN-41) 7 days.  No indication of appeal in the record.

951013:	NJP for violation of UCMJ, Article 92:  Dereliction of duties.
Violation of UCMJ, Article 115:  Malingering.
	Award:  Forfeiture of $100 per month for 1 month, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

980409:	NJP for violation of UCMJ, Article 92 (2 Specifications):  Failure to obey order or regulation. 
Violation of UCMJ, Article 121:  Larceny and wrongful appropriation. 
	Award:  Forfeiture of $200 per month for 1 month (suspended for 3 months), restriction to base for 30 days, extra duties for 30 days, reduction to next inferior pay grade (suspended for 3 months).  No indication of appeal in the record.

980709:	NJP for violation of UCMJ, Article 86: (4 Specifications).
	Award:  Not found in record.  [Extracted from Commanding Officer’s message of 990728].

980709:	NAVPERS 1070/613 issued.  [Extracted from Commanding Officer’s message of 990728].

981006:	Reduction in pay grade awarded at NJP on 980409 vacated due to continued misconduct.

981020:	NJP for violation of UCMJ, Article 92 and 121.
	Award:  Due to continued misconduct the reduction to next inferior paygrade 980409 is hereby vacated this date.  

981026:	NJP for violation of UCMJ, Article 121:  Larceny and wrongful appropriation, in that MBR did on or about 12 Feb 98, steal U.S. Currency in the amount of approximately $120.00, military property of the United States.
	Award:  Forfeiture of $240 per month for 1 month, restriction to base for 30 days, reduction to E-3.  No indication of appeal in the record.

990329:	General Court-Martial.
	Charge:  violation of the UCMJ, Article 134:
	Finding:  Not found in record.
	Sentence:  Not found in record.  [Extracted from Commanding Officer’s message of 990728].

Unknown:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  The Board recommended separation under other than honorable conditions [Extracted from Commanding Officer’s message of 990728].

990721:	Letter of Deficiency.  [Extracted from Commanding Officer’s message of 990728].

990728:	Commanding Officer, Transient Personnel Unit Puget Sound, recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct commission of a serious offense.  Commanding Officer’s comments:  “OSSR B_ (Applicant) is being processed for Misconduct-Pattern of Misconduct and Misconduct-Commission of a Serious Offense.  He has no potential for further naval service.  OSSR B_’s (Applicant) disregard for basic Navy core values is extremely detrimental to the good order and discipline of the Navy.  OSSR B_ (Applicant) is currently being carried in an unauthorized absence status.  Therefore, I recommend discharging him in absentia with an Other Than Honorable.”

990730:	Commander, Navy Region Northwest, directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

Service Record contains a partial Administrative Discharge package. 
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19990804 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 Board presumed regularity in the conduct of governmental affairs (D).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of a pattern of misconduct.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his multiple NJPs, NAVPERS 1070/613 retention warning and general court-martial conviction.  On 19990728, the Commanding Officer, Transient Personnel Unit Puget Sound, recommended to Commander, Navy Region Northwest, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Although the administrative discharge was incomplete, the Commanding Officer’s letter referenced the Applicant’s misconduct, discharge processing, page 13 entry, and general court-martial conviction.  On 19990730, Navy Region Northwest directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

The Applicant contends that his discharge is inequitable because it is based on seven isolated incidents in 108 months of total service.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  The Applicant’s service was marred by six nonjudicial punishment proceedings and one general court-martial conviction for violations of UCMJ Articles 86, 92, 115, 121, and 134.  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.

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 could 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 Board received and considered all of the Applicant’s submissions, including his letter of recommendation, proof of employment, and criminal records check.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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, Para 211, Regularity of Government Affairs.  

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