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

FOR OFFICIAL USE ONLY

 ex-SR, USN 
Docket No. ND05-01068

Applicant’s Request

The application for discharge review was received on 20050614.  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 the Veterans of Foreign Wars 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 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 character 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

Applicant’s issues, as stated on the attached document/letter:

“To whom it may concern

The reason I’m asking for an upgrade is that I’m attending school and I’ve just found out that once I graduate the company that I want to work for will not hire graduates that have been in the military and has less than an honorable discharge.

I feel that an upgrade is warranted because my discharge was inequitable; it was based on one isolated incident in 20 months of service with no adverse action.

The events leading to the discharge was it was mid December 2002 my mother was very ill, so I took an early holiday leave.  On the way back my car had problems so, I bought a phone card and I called my master chief at the time to let him know what was going on.  He wanted me to call him everyday and I told him I couldn’t because my mother didn’t have long distance and that the money I had I used to get my car fixed and that I was going to have to wait til next payday to return.  Once I returned he made it as where I was lying.  There wasn’t anyone that wanted to believe me even with the evidence as to when and where I had my car fixed.

Sincerely,
[signed]
S_ A_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s):  Command misrepresented facts surrounding the applicant’s status on extended leave.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

Mr. A_ (Applicant) served in the US Navy from Jun. 8, 2001 to Mar. 5, 2003.  He is a recipient of the National Defense Service Medal.

Mr. A_ (Applicant) was awarded non-judicial punishment for 3 violations of Article 86 (UA), one violation of Article 92 (failure to obey a lawful order) and one violation of Article 107 (making a false official statement).

Mr. A_  (Applicant) was on what he believed to be authorized leave to visit his ill mother and grandmother when his automobile broke down and left him stranded.  He contacted his chain of command and was informed that he should call and check in every day.  He was not informed that he was in AWOL status.  Mr. A_ (Applicant)’s mother corroborates his assertion.

Upon returning to duty after the repair of his automobile, Mr. A_ (Applicant) was presented with non-judicial punishment for one specification of Unauthorized Absence and one specification of Failure to Obey the Lawful Order of a Non-Commissioned Officer.

Mr. A_ (Applicant) contends that his Chief Petty Officer misrepresented his status to the command and that he, Mr. A_ (Applicant), was thereafter charged with the two aforementioned infractions.  It is Mr. A_ (Applicant) contention that the Chief Petty Officer’s casual disregard of the truth is the genesis of his discharge.

Mr. A_ (Applicant) was never afforded an administrative separations board, and he had no military counsel or representation.  He has an impartial witness who corroborates his contentions as they relate to his status on extended leave and the facts surrounding his contention that his automobile was immobile and being repaired.

Mr. A_ (Applicant) contends that he deserves an Honorable discharge and the VFW asks that his discharge be re-characterized accordingly.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

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

Applicant’s DD Form 214
Character Reference ltr from L_ L_, Applicant’s mother, undtd (2 pages)
Police record check, dtd May 23, 2005
Grade Transcript, Aviation Institute of Maintenance, dtd May 11, 2005
Ltr from School Director, Aviation Institute of Maintenance, dtd May 9, 2005
Ltr from D_ C_, Placement Officer, Aviation Institute of Maintenance, dtd May 10, 2005
Cover ltr from Veterans of Foreign Wars, dtd June 7, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010515 - 20010530	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010531		Date of Discharge:  20030305

Length of Service (years, months, days):

	Active:    01  08  28  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  7 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  10				AFQT:  33

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*	Behavior:  NA*	OTA:  NA*

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

* Not Available

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: 

020905:	NJP for violations of UCMJ.
Article 86 (2 specs): 
	Specification 1: In that Seaman S_ D. A_ (Applicant), Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, did, on or about, 0630, 12 August 2002, without authority, absent himself from his unit, to wit: Duty section muster, located at Assault Craft Unit FOUR, and did remain so absent until on or about 0710 12 August 2002.
	Specification 2: In that Seaman S_ D. A_ (Applicant), U.S. Navy, Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, did, on or about, 1830 20 August 2002, without authority, absent himself from his unit, to wit: Duty Section muster, located at Assault Craft Union FOUR, and did remain so absent until on or about 0710 21 August 2002.
Article 107: False Official Statement.
Specification: In that Seaman S_ D. A_ (Applicant), U.S. Navy, Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, did, at Portsmouth Naval Hospital, on or about, 7 August 2002, with intent to deceive, change an official medical record document (SF-600), to wit: patient is not able to sit and stand for watches, which record was false in that the document previously read, patient is able to sit and stand for watches, and was then known by the said SN A_ (Applicant) to be so false.
	Award:  Forfeiture of $651.75 per month for 2 months, restriction for 60 days, reduction to E-2.  Restriction for 30 days and reduction suspended for 6 months.  No indication of appeal in the record.

020924:	Retention Warning:  Advised of deficiency (CO’s NJP of 5 September 2002 for violation of UCMJ Article 86, 2 Specifications (unauthorized absence for a period of 40 minutes) (unauthorized absence for a period of 12 hours and 40 minutes) and violation of UCMJ Article 107 (false official statements)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030109:	Applicant to unauthorized absence at 0715 on 030109.

030117:	Applicant from unauthorized absence at 0700 on 030117 (7 days/surrendered).  EAOS changed to 05Jun07.

030130:	Reduction in pay grade awarded at NJP on 020905 vacated.

030130:	NJP for violation of UCMJ, Article 86: In that Seaman S_ D. A_ (Applicant), U.S. Navy, Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, did, on or about, 0715, 9 January 2003, absent himself from his unit, to wit: Assault Craft Unit FOUR, located at Naval Amphibious Base Little Creek and did remain so absent until on or about 0700 17 January 2003.  
Violation of UCMJ, Article 92:  In that Seaman S_ D. A_ (Applicant), U.S. Navy, Assault Craft Unit FOUR, Naval Amphibious Base, Little Creek, Norfolk, Virginia, having lawful knowledge of a lawful order issued by Personnel Support Activity Detachment, Little Creek Limited Duty Coordinator, to have all leave chits approved by the Limited Duty Coordinator while in a limited duty status, an order which it was his duty to obey, did, on or about 24 October 2002, failed to obey the same.
	Award:  Forfeiture of $575.00 per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

030130:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - pattern of misconduct.

030130:	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.

030210:	Commanding Officer, Assault Craft Unit FOUR recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “Seaman A_ (Applicant) enlisted nearly three years ago.  He has contributed very little to the U.S. Navy, and as a result of his significant medical issues and repeated misconduct, he has become a tremendous administrative burden.  In January 2002, he reported to ACU 4 on Limited Duty for knee pain he suffered from a motor vehicle accident, which occurred prior to his enlistment.  Due to his failure to keep medical appointments and follow prescribed treatment, he has significantly delayed his limited duty process.  Additionally, Seaman A_ (Applicant) received nonjudicial punishment (NJP) twice since reporting.  His first NJP was as a result of falsifying medical documents to avoid standing watches.  Both NJP’s included charges of Unauthorized Absence.  Seaman A_ (Applicant) has failed to exhibit any of the Navy’s Core Values.  His selfish motives, misconduct, and poor performance have caused me to lose complete confidence in his ability to serve honorably.  It is strongly recommended that Seaman A_ (Applicant) be expeditiously discharged under other than honorable condition.”

030219:	Commander, Amphibious Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030305 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 the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests that his service characterization be changed to honorable and contends that his discharge is inequitable because it was based on one incident in 20 months of service with no other adverse action.  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 two nonjudicial punishment proceedings for violations of Articles 86, 92 and 107 of the UCMJ.  The Applicant’s violations of Articles 92 and 107 are serious offenses.  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 Applicant implies that his discharge was improper because he could not return from leave because he had car “problems” and that once he returned, his master chief inequitably made it appear as if the Applicant was lying.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced sufficient credible evidence, to support the contention that he was not responsible for his conduct or should not be held accountable for his actions.  The Applicant was subject to nonjudicial punishment proceedings for a second time on 20030130.  The Applicant’s Commanding Officer determined the Applicant had committed violations of Articles 86 and 92 of the UCMJ.  The Applicant met the required criteria contained in Reference (A) for administrative processing by reason of misconduct due to pattern of misconduct.  The Board found no impropriety or inequity in the Applicant’s nonjudicial punishments or subsequent administrative separation.  Relief denied.

The Applicant contends, through his representative, that he was not afforded an administrative separation board and that the Applicant had no military counsel or representation.  The Applicant was notified of his Commanding Officer’s intention to recommend the Applicant’s separation on 20030130.  The Applicant was then advised of his rights and elected not to consult with counsel and not to appear before an administrative separation board.  The Board found the Applicant’s issue without merit.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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.  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, failure to obey an order/regulation or Article 107, false official statement.

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.

E.  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