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

FOR OFFICIAL USE ONLY

 ex-EMFR, USN
Docket No. ND06-00595

Applicant’s Request

The application for discharge review was received on 20060329.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20061115.  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:

“1. The discharge that I received was inequitable based on the fact that after numerous request for assistance on a personal matter no such assistance was given or offered.  As a result of this lack of counsel my performance as a Sailor was deemed sub-standard.

2. The discharge I received was inequitable because after an incident occurred as a result of my on going personal problems, my Division Officer, a Chief Warrant Officer H_, seemed to make a point of trying to catch me doing anything wrong.  During the resulting Captain’s Mast for an unjust charge, I allowed my youth get the better of me and accepted the offer to be separated from the Navy.

I request a upgrade or change to my discharge so that I might be able to utilize my veterans status to obtain a position within the federal government.  Since my discharge I have completed a five year apprenticeship program and received my professional license as a Journeyman wireman.  I have also obtain my bachelors degree in Business Administration which I graduated with honors.  I was also accepted to the National Scholars Honors Society.  It is my deepest desire that these achievements not only reflect well upon me, but also on the Department of the Navy and the values that they stand for.”

Documentation

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

Journeyman Wireman Diploma, dtd June 1, 2002
Bachelor of Science in Business Administration Diploma, dtd February 26, 2006
Electrician Journeyman License, expiration date October 6, 2001 
National Scholars Honor Society Certificate 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19880629 - 19890625	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890626		Date of Discharge:  19920710

Length of Service (years, months, days):

	Active:    03  00  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (24-month extension)

Education Level:  12				AFQT:  77

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.24 (5)	Behavior:  3.08 (5) 		OTA:  3.25 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Desert Storm Southwest Asia Service Medal with 1 bronze star, Sea Service Deployment Ribbon.

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: 

900117:	Counseling:  Advised of deficiency (Disrupting night study, slapping a classmate), notified of corrective actions and warned future deficiencies may result in discharge from Nuclear Field Option.

900201:	Retention Warning:  Advised of deficiency (Failure to turn in liberty card on time and sleeping in class.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900202:	Applicant disenrolled from the Nuclear Power Training Program for demonstrated unreliability (failure to obey a lawful order).

900217:	NJP for violation of UCMJ, Article 92:  Disobeying a lawful order.  Specification 1.  Failure to turn in liberty card on time 900201.  Specification 2:  Sleeping in class 900201.
	Award:  Forfeiture of $100.00 pay for one month, reduction to E-2.  No indication of appeal in the record.  [Extracted from CO’s message of 920701 and Report and Disposition of Offenses dated 920619.]

911120:	NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel or look out, did, on or about 2230, 911021, being posted as a EMOW of aft switchboard, was found sleeping upon his post.
	Award:  Extra duty for 45 days, reduction in rate to next inferior pay grade.  No indication of appeal in the record.

911120:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 113: Misbehavior of a sentinel or lookout.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920626:	NJP for violation of UCMJ, Articles 86 and 113:  Specification 1:  Did on or about 920618, without authority absent himself from his unit, the place of duty at which he was required to be, to wit: USS MAHAN, located at Charleston Naval Station, SC and did remain so absent until, on or about 0800, 920618, a period of about 2 hours.  Specification 2:  On or about 0945 on board USS MAHAN, located at Naval station Charleston, S.C., being on watch on aft switchboard, was found sleeping on his post.
Award:  Restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.  

920630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  To wit: NJP awarded 26 June 92 for VUCMJ article 86: unauthorized absence, and VUCMJ article 113: misbehavior of a sentinel, NJP awarded 20 November 1991 for VUCMJ article 113: misbehavior of a sentinel, NJP awarded 17 February 1990 for VUCMJ article 92: two counts of disobeying a lawful order.

920630:	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.

920701:	Commanding Officer, USS MAHAN recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “Separate SNM for misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense under other than honorable conditions immediately.  EMFR M_ (Applicant) cannot be trusted with any responsibility and has no possibility of further useful service in the U.S. Navy.”

920707:	BUPERS directed the Applicant's discharge other than honorable by reason of misconduct due to a pattern of misconduct.

960401:	NDRB documentary record review Docket Number ND95-01303 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920710 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of uncharacterized 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).  

Issue 1.  The Applicant implies that his discharge is inequitable because he asked for assistance on a personal matter and that no assistance was offered.  The Applicant further indicates that because of the lack of assistance his performance was deemed substandard.  The Applicant’s testimony reveals that he requested assistance in the Spring of 1992 for alcohol abuse.  The Applicant’s testimony also reveals that he requested command assistance regarding a personal relationship during his enlistment.  Despite these requests, neither the evidence of record, nor the documentation or statements provided by the Applicant demonstrate that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  The Applicant implies that after an “incident” occurred due to a personal problem, the Applicant was the subject of undue scrutiny.  The Applicant further indicates that during his last nonjudicial punishment (NJP) hearing, he “accepted the offer to be separated from the Navy.”  The Board found the Applicant’s issue without merit.  During his testimony before the Board, the Applicant admitted that he committed the infractions of the UCMJ for which he was awarded nonjudicial punishment.  The Applicant also indicated that, at his last NJP hearing, he informed his Commanding Officer that, if retained, the Applicant would throw a Warrant Officer, his supervisor, overboard.  Relief denied.

The Applicant requested, during his personal appearance hearing, that the Board grant relief based on post-service equity.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided documentation regarding his educational and professional efforts.  The Applicant also testified that he is currently completing his post-graduate education.  While the Board applauds the Applicant’s educational accomplishments and dedication to professional certification, the Applicant’s accomplishments were found not to mitigate the misconduct, which precipitated the discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief not warranted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), 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 92, failure to obey order/regulation or Article 113, misbehavior of a sentinel.

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