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

FOR OFFICIAL USE ONLY

 ex-AOAR, USN
Docket No. ND05-00927

Applicant’s Request

The application for discharge review was received on 20050513.  The Applicant requests his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  After a thorough review of all available 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 characterization of the 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

No issues were submitted by the Applicant.

Documentation

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

Employment Reference ltr from J_ R_, Human Resources Manager, dtd April 14, 2005
Employment Reference ltr from D_ K_, dtd April 18, 1996
Letter of Recommendation from J_ L_, Maintenance Team Leader, dtd March 21, 2005
Employment Reference ltr from D_ H. M_, Production Supervisor, dtd March 22, 2005 
Administrative separation package from Commanding Officer USS Dwight D. Eisenhower (CVN-69) to Chief of Naval Personnel (24 pages), dtd April 18, 1996 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920529 – 19921116		
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921117		Date of Discharge:  19960508

Length of Service (years, months, days):

	Active:    03 05 20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  none

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  38

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3) 		Behavior:  3.5 (3) 		OTA:  3.7 (3) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation with 2 Bronze Stars.

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

921118:	Retention Warning.  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  Failure to comply with officer’s directive, 8/92, Victor Valley CA, paid $200 fine.  Speeding, 8/92, Victor Valley CA, paid $200 fine.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

950505:	Applicant to unauthorized absence at 0630 on 950505.

950505:	Applicant from unauthorized absence at 0750 on 950505 (1 hr/20mins).

950905:	Applicant to unauthorized absence at 0600 on 950905.

950906:	Applicant from unauthorized absence at 0600 on 950906 (24 hrs).

951018:	Applicant charged with violation of UCMJ Article 92 (dereliction of duty), found sleeping during duty hours.

951024:	Applicant to unauthorized absence at 0600 on 961024.

951024:	Applicant from unauthorized absence at 1030 on 961024 (4 hrs/30 mins).

951106:	Applicant to unauthorized absence at 0600 on 961106.

951106:	Applicant from unauthorized absence at 0900 on 961106 (3 hrs).

951115:	Applicant charged with violation of UCMJ Article 86 (unauthorized absence, place of duty).

951116:	NJP for violation of UCMJ, Article 86: Fail to go at 0400, 951115 to appointed place of duty.
Violation of UCMJ, Article 92: Willful dereliction in the performance of duties by sleeping during working hours, on or about 951018.
	Award:  Forfeiture of $427 per month for 1 month ($212 per month for 1 month suspended for 6 months), restriction and extra duty for 14 days (7 days suspended for 6 months), reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

951117:	Retention Warning:  Advised of deficiency (Commanding Officer’s non-judicial punishment of 951116 for failing to go at 0400, 951115 to the messenger of the watch; and willful dereliction of duty by sleeping during working hours; on or about 951018), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951202:	Applicant to unauthorized absence at 0600 on 961202.

951202:	Applicant from unauthorized absence at 1200 on 961202 (6 hrs).

960113:	Applicant to unauthorized absence at 0600 on 960113.

960113:	Applicant from unauthorized absence at 1010 on 960113 (4 hrs/10 min).

960201:	Punishment of RIR to AOAA, forfeit $213 pay per month for 1 month, and 7 days extra duty suspended at CO’s NJP of 951116 vacated this date due to continued misconduct.

960201:	Retention Warning:  Advised of deficiency (Commanding Officer’s non-judicial punishment of 960201 for unauthorized absence from 0600, 951202 to 1200, 951202; and for unauthorized absence from 0600, 960113 to 1010, 969113), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960201:	NJP for violation of UCMJ, Article 86: (2 Specs).
Spec 1: UA from unit from 0600, 951202 to 1200, 951202.
Specification 2: UA from unit from 0600, 960113 to 1010, 960113.
	Award:  Forfeiture of $437 per month for 1 month, restriction for 14 days, reduction to E-1.  No indication of appeal in the record.

960328:	NJP for violation of UCMJ, Article 86: Unauthorized absence from the unit from 0600, 960224 to 0900, 960224.
	Award:  Forfeiture of $435 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

960328:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishment under the UCMJ in your current enlistment, misconduct due to commission of a serious offense as evidenced by all serious offenses in your current enlistment and defective enlistment and induction due to fraudulent entry into the naval service as evidenced by failing to reveal your civilian involvement.

960328:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960415:	Commanding Officer, USS Dwight D. Eisenhower (CVN-69) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and defective enlistment and induction due to fraudulent entry into the naval service.  Commanding Officer’s comments:  “AOAR B_ (Applicant) misconduct is incompatible with naval service.  I recommend AOAR B_ (Applicant) be expeditiously discharged from the navy with an other than honorable discharge by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and defective enlistment and induction due to fraudulent entry into the naval service.”

960418:	Commanding Officer, USS Dwight D. Eisenhower (CVN-69) forwarded the administrative discharge package to CNP (PERS-832).

960419:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960508 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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.  A 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 three nonjudicial punishment proceedings for violations of UCMJ Article 86 (unauthorized absence, 4 specifications) and Article 92 (dereliction of duty).  Violations of Article 92 are considered the commission of a serious offense and are punishable by a punitive discharge if convicted by courts-martial.  A pattern of misconduct, the reason for the Applicant’s discharge, is defined as more than one nonjudicial punishment during a single enlistment.  There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ adjudicated at three nonjudicial punishments.  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.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  The Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  Relief denied.

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.  The Applicant submitted four letters of recommendation.  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 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 (dereliction of duty).

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