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

FOR OFFICIAL USE ONLY

ex- SMSA, USN
Docket No. ND06-00444

Applicant’s Request

The application for discharge review was received on 20060206.  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 20061206.  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 and letter:

“I am respectfully requesting an upgrade of discharge, I have had a lot of time to reflect on my behavior in the navy.  My behavior was unacceptable and I deeply requet it.  The only for the way I acted was imaturity.  I ve grown up a lot since then and have paid with dishonor in my heart for the last twelve years.  I m a law abiding citizen, tax payer, register voter, father, caregiver and a man who respectfuly request a second chance, if possible to serve my country honorably.  Im thirty three, in real good health, workout all the time.  Don’t smoke or do drugs.  Also an conceled weapons carrier, state of FC have knowledge in small arms.  My grandfather, P_ F_ fought at IMO Jima in 1945.  My father fought in Vietnam between 1967-69.  That by itself makes me more ashame of my behavior, because of their sacrifice.  Im a caregiver for my Grand Father and Have been doing this seven years April 2006.  The time taking care of my grand parents has given me the biggest oprotunity to reflect my past.  By taking care of my grandparent Ive been able to take care of myself.  I do have a passion to serve my country during war time like my father and grand father.

Sincerely, 

[signed]  P_ F_ (Applicant)”

Documentation

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

Ltr from Escambia Sheriff’s Office, dtd October 18, 2005
Ltr from the City of Pensacola, Office of the Chief of Police, J_W. M_, dtd October 18, 2005
Applicant’s DD Form 214  (Service 2) 
52 pages of Applicant’s Medical records

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910531 - 19911014	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19911015		Date of Discharge:  19940914

Length of Service (years, months, days):

	Active:    02  10  30  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  26 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  51

Highest Rate:  SMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (4)	Behavior:  3.0 (4) 	OTA:  3.3 

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

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: 

930308:	Applicant to unauthorized absence at 0730 on 930308.  Surrendered on board USS SAIPAN (LHA 2).  Charged 1 day of leave.

930625:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery.
Award:  Forfeiture of $250.00 pay per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

940627:	Applicant to unauthorized absence at 0610 on 940627.

940718:	Applicant from unauthorized absence at 1415 on 940718 (21 days/surrendered).

940718:	Applicant returned from UA and admitted to using marijuana.

940722:	Applicant to unauthorized absence at 0610 on 940722.

940727:	Applicant from unauthorized absence at 0045 on 940727 (5 days/surrendered.)

940727:	Counseling warning issued by parent command on this date.

940727:	NJP for violation of UCMJ, Article 134:
	Specification 1:  Carrying a concealed weapon, wit: a hawkbill knife.
	Specification 2:  Drunk and disorderly.
	Awarded:  Unknown

940804:	NJP for violation of UCMJ, Article 86:
	Specification 1:  UA for 21 days, 940627 until 940718.
	Specification 2:  UA for 5 days
	Specification 3:  UA for 6 hours
	Award:  Unknown

940808:	Applicant notified of intended recommendation for discharge, that if separation is approved, characterization of service may be under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by service record entries and by reason of misconduct due to a pattern of misconduct as evidenced by all punishment under the UCMJ in the current enlistment.

940808:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

940809:	Drug and Alcohol Abuse Report:  Applicant was reported ashore-off duty on or about 940804 abuse marijuana.  Urinalysis done and it was consensual.  Physician found Applicant not dependent and recommended separation from the service not via VA Hospital.  Commanding Officer also recommends separation from the service not Via Hospital.  NJP was given as disciplinary action.

940809:	SNM evaluated by Medical Officer and was diagnosed as not dependent on drugs.  SNM was diagnosed as psychologically dependent on alcohol.

940823:	Commanding Officer, USS SAIPAN, recommended that the Applicant be discharged with under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in current enlistment, by reason of misconduct due to commission of a serious offense as evidenced by service record entries and by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment.  Commanding Officer’s comments:  “SNM has demonstrated no initiative to comply with the rules and regulations of the military.  He has shown no potential for further service and is a detriment to good order and discipline.  I strongly recommend that he be discharged under Other Than Honorable Conditions as soon as possible.”

940902:	BUPERS, directed the Applicant's discharge with under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940914 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 claims he is a law abiding citizen, tax payer, register voter, father and caregiver and would like a second chance to serve honorably.  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 to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant claims he was young and immature and his behavior at the time was unacceptable and he deeply regrets it.  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  Relief denied.

The Applicant states “I do have a passion to serve my country during war time like my father and grand father.”  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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, Articles 112a (Wrongful use, possession, etc. of controlled substances) and 128 (Assault). 

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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