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

FOR OFFICIAL USE ONLY

  ex-SR, USNR
Docket No. ND05-01540

Applicant’s Request

The application for discharge review was received on 20050912.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060621.  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 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 was a young hot headed young man and did not have the upbringing most young men my age had.  I feel I can explain myself better in person.”

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from R_ M. T_, LTC (ret)
Letter of Recommendation from J_ A. D_, Chairman Calhoun County Commission 
Dist 1.
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

Inactive: USNR 		19910518 – 19910706		ELS
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19911205		Date of Discharge:  19930618

Length of Service (years, months, days):

	Active:    01 06  17  (Does not exclude lost time.)
	Inactive:  00  08  27

Time Lost During This Period (days):

	Unauthorized absence:  4 days
	Confinement:		  none

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (1) 		Behavior:  3.0 (1) 		OTA:  3.40 

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920901:	Commenced active duty for a period of 4 years.

921106:	Applicant apprehended by San Diego Police Dept, charged with Solicitation of Prostitution.

921106:	UA from NAVCRUITRACOM San Diego, CA.

921110:	Applicant returned to military jurisdiction at 2010, 921110 by San Diego County Shore patrol for return to NAVCRUITCOM San Diego, CA.  Returned to NAVCRUITRACOM San Diego, CA at 2225, 92110.  Retained on board for disciplinary action/disposition.

930128:	NJP for violation of UCMJ, Article 86: Unauthorized absence, in that SR J_ D. M_, USNR, on active duty, USS SAN DIEGO (AFS 6), did, on or about 0800, 930110, to on or about 0730, 930111, absent himself from his place of duty, to wit: USS SAN DIEGO (AFS 6), for a period of about 23 hours and 30 minutes.
Award:  Forfeiture of $407 pay per month for 1 month (suspended for six months), restriction and extra duty for 30 days.  No indication of appeal in the record.

930128:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930402:	Forfeiture of pay awarded at NJP on 930128 vacated due to continued misconduct.

930402:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, in that SR J_ D. M_, USNR, on active duty, on board USS SAN DIEGO (AFS 6), from on or about 0430, 930319, to 0551, 930319, without authority, fail to go to his appointed place of duty, to wit: the crews galley.
	Violation of UCMJ, Article 92: Failure to obey other lawful order, in that SR J_ D. M_, USNR, on active duty, having knowledge of a lawful order issued by MS2 A_ D. S_, to go into the galley and field day with the other food service attendants, an order which it was his duty to obey, did, on board USS SAN DIEGO (AFS 6), on or about 0730, 930325, fail to obey the same by wrongfully going to Supply berthing instead.
Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record

930506:	Retention Warning:  Advised of deficiency (Not giving other the proper respect to which they are entitled.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930513:	NJP for violation of UCMJ, Article 107: False official statement, in that SR J_ D. M_, USNR, on active duty, on board USS SAN DIEGO (AFS 6), on or about 0900, 930512, with intent to deceive, cheat on the basic damage control test, to wit: by using pre-written test answers, and was then known by the said SR M_ to be so false.
Award:  Forfeiture of $407 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

930515:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense as evidenced by service record entries.

930515:	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.

930523:	Commanding Officer, USS SAN DIEGO (AFS 6) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “Forwarded, member has been counseled in accordance with MILPERSMAN 3630600.  SR M_ (Applicant) has committed numerous small infractions during his short time on board, culminating in cheating on the Basic DC test.  While numerous attempts to counsel him did lead to some improvement, he has continued to be an administrative burden to the command.  The extensive supervision and guidance required to ensure that SR M_ (Applicant) performs adequately far outweighs the limits results obtained.  SR M_ (Applicant) has no potential for further service and retention at command.  I recommend that SR M_ (Applicant) be discharged from the Naval Service and that the characterization of discharge be Other Than Honorable.”

930611:	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 19930618 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

The Applicant states, “I was a young hot headed young man and did not have the upbringing most young men my age had”.  The NDRB advises the Applicant that 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.  Two retention warnings and 3 nonjudicial punishment proceedings for violations of UCMJ Articles 86(absent without leave), 92 (failure to obey a lawful order) and 107 (false official statement) marred The Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 and 92 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 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 sufficient post-service documentation for the Board to consider.  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 additional evidence related to this 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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 86(absent without leave) and Article 92 (failure to obey a lawful order).

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