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

FOR OFFICIAL USE ONLY

ex-PRAA, USN
Docket No. ND06-00555

Applicant’s Request

The application for discharge review was received on 20060310.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “General.”  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 20070125.  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 characterization 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 - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity—Post service
Equity – family problems

Documentation

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

Applicant’s DD Form 214 (Member 4)
Letter from Applicant, dtd February 24, 2006
Excerpts from Service Record (6 pgs)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
	
	Inactive: USMCR (DEP)	Unknown	COG
	Active:   USMC	19960102 - 20000101	HON
	Inactive: USNR (DEP)	None	COG

Period of Service Under Review:

Date of Enlistment:  20010208		Date of Discharge:  20040923

Length of Service (years, months, days):

	Active:    03  07  16  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None 

Age at Entry:  25

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  PR3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1) 		Behavior:  2.0 (1) 			OTA:  2.33 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy & Marine Corps Achievement Medal (3), Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Expert Rifle 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: 

010208:	Reenlisted this date for a term of 4 years.

011114:	Applicant counseled regarding failure of Physical Fitness Assessment (PFA).  On 011031 body fat percentage was 26. 

021118:	Applicant counseled regarding his 3rd failure to meet physical standards in four year.  Body Composition Date 021024.  Notified of corrective actions and assistance available, failure to meet Physical Readiness Program standards may result in adverse administrative action.

030423:	Applicant unauthorized absence over liberty 1330 to 2000.

030521:	Retention Warning:  Advised of deficiency (violation of Article 86, UMCJ, absence from organization on or about 030423 as evidenced by Disciplinary Review Board of 030507), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030523:	Retention Warning:  Advised of deficiency (failed Body Composition Assessment portion of the Spring 2003 Command Physical Fitness Assessment.  Fourth failure in four years), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030929:	Retention Warning:  Advised of deficiency (failed Body Composition Assessment portion of the Fall 2003 Command Physical Fitness Assessment.  Fifth failure in four years), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040126:	Disciplinary Review Board recommended CO’s mast, reduction in rate, 60 days restriction, ADSEP with OTH ASAP! for violation of Article 86 (3 specifications).

040127:	NJP for violation of UCMJ, Article 86: (3 specifications), failure to go to appointed place of duty.
Award:  Restricted to NAS Corpus Christi, TX for 60 days, reduction to E-3.  No indication of appeal in the record.

040127:	Retention Warning:  Advised of deficiency (violation of the UCMJ, Article 86 (3 specifications), failure to go to appointed place of duty, more specifically, 3 absences from the Fitness Enhancement Program (FEP) muster and exercise period, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040322:	Retention Warning:  Advised of deficiency (failed Body Composition Assessment portion of the Spring 2004 Command Physical Fitness Assessment.  Sixth failure in four years.  HT:69.5  WT:248  NK:18  Waist:40  BCA:23% ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040723:	Disciplinary Review Board recommended ADSEP, reduction in rate, 30 days restriction for pattern of misconduct.

040826:	NJP for violation of UCMJ, Article 86: (3 specifications), failure to go to appointed place of duty.
Award:  Restricted to NAS Corpus Christi, TX for 30 days, reduction to E-2.  No indication of appeal in the record.

040830:	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 as evidenced by CO’s NJP of 040127, NAVPERS 1070/13 of 040127 and CO’s NJP of 040826.

040830:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040831:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

040907:	GCMCA 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 20040923 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 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).

The Applicant requests upgrade of his characterization of discharge.  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 five retention warnings, two nonjudicial punishment proceedings for 6 violations of UCMJ Article 86.  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 contends his disciplinary problems were the result of stress caused by his marital problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The application mentions post service accomplishments in support of his request for upgrade.  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 the civilian life subsequent to leaving the service.   Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  However, the NDRB is authorized to consider 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.  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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The applicant states that he wants an upgrade to enhance his employment opportunities.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, 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 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