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

FOR OFFICIAL USE ONLY

  ex-SA, USN
Docket No. ND05-00987

Applicant’s Request

The application for discharge review was received on 20050525.  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 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 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:

“I believe now that my conduct in the Navy was wrong.  Since my discharge from the Navy I have tried to improve myself.  I am attending Teterboro School of Aeronautics with the hope of becoming an aircraft mechanic.  I believe that I have become a more mature individual.  I believe that my Navy record should be changed. ”

Documentation

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

Job reference, dtd May 9, 2005
Job reference, dtd May 2, 2005
Letter of recommendation, dtd January 12, 2005
Letter of recommendation, dtd September 10, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001212 - 20010828	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010829		Date of Discharge:  20040701

Length of Service (years, months, days):

	Active:    02  10  03
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  46

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)		Behavior:  2.0 (3)	OTA:  2.78

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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: 

030128:	NJP for violation of UCMJ, Article 121:  Larceny.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture for 1 month suspended.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 040609.]

030130:	NAVPERS 1070/613 warning:  No further information found in service record.  [Date extracted from Commanding Officer’s letter dated 040609.]

040531:	NJP for violation of UCMJ, Article 107:  False official statement.
Violation of UCMJ, Article 121:  Larceny and wrongful appropriation.
	Award:  Forfeiture of $718 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040531:	Applicant notified of intended recommendation for discharge by reason of misconduct due to pattern of misconduct.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

040531:	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.

040609:	Commanding Officer, USS HOWARD (DDG 83) recommended discharge with a under other than honorable conditions by reason of misconduct due to pattern of misconduct.  Commanding Officer’s comments:  “On 28 January 2003, SA M_ (Applicant) was found guilty at CO’s NJP of larceny for stealing over $900 from the rack of one of his shipmates.  He was awarded 45 days restriction, 45 days extra duty, forfeiture of ½ months pay for 2 months (one month suspended) and reduced in rate to E-2.  SA M_ (Applicant) was ordered to pay back the stolen money.  On 31 May 2004, SA M_ (Applicant) was found guilty at CO’s NJP of larceny and giving a false official statement for stealing a digital camera from one of his shipmates while on watch than lying about it to the CMAA.  He was awarded 45 days restriction, 45 days extra duty, forfeiture of ½ months pay for 2 months and reduced in rate to E-2.  He has repeatedly demonstrated total disregard for the Navy Core Values as well as his shipmates.  In my opinion, he has no potential for future Naval service; therefore, I recommend separation with a discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.”

040615:	COMCARGRU SEVEN directed the Applicant's discharge with under other than honorable conditions by reason of misconduct due to pattern of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040701 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 misconduct due to a pattern of misconduct.  A review of the Applicant’s service record reveals that a preponderance of evidence supports the finding that the Applicant committed misconduct due to a pattern of misconduct.  The Applicant was awarded nonjudicial punishment on 20030128 for a violation of UCMJ Article 121, larceny.  Subsequently, the Applicant received a NAVPERS 1070/613 retention warning which was violated by nonjudicial punishment on 20030531 for violations of UCMJ Articles 121, larceny and wrongful appropriation, and 107, false official statement.  The record further reveals that on 20040531 the Applicant was properly processed and notified for separation by reason of misconduct due to a pattern of misconduct with a least favorable characterization of service as under other than honorable conditions.  On 20040531, the Applicant elected to not consult with qualified counsel and waive all of his procedural rights.  On 2004609, the Commanding Officer, USS Howard, recommended to Commander, Carrier Group Seven, that the Applicant be discharged under other than honorable conditions by reason of commission of a serious offense.  On 20040615, Commander, Carrier Group Seven 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.  Despite the Applicant’s contentions, 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.

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.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 107 and 121, and one NAVPERS 1070/613 retention warning.  Based upon this misconduct, the Board concluded by unanimous vote that the Applicant’s service was equitably characterized as under other than honorable conditions and reflects his failure to meet the minimum standards required for an honorable discharge.  The Board concluded that 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 letters of reference and letters of employment.  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 any additional 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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
		Washington Navy Yard DC  20374-5023