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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00826

Applicant’s Request

The application for discharge review was received on 20060509.  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 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 20070316.  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 shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 26, Separation Authority, should read:  “HKA,” and Block 28, Narrative Reason for Separation, should read:  “Misconduct - Pattern of misconduct,” and Block 29, Dates of Time Lost During This Period, should read:  “92FEB07 TO 92FEB10, 92APR06, 92JUN08 TO 92JUN09, 92NOV30.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: Quality of service.

	Equity: Post service.

Documentation

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

Applicant’s DD Form 214 (Service 2)
Applicant’s statement undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890608 - 19890625	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890626		Date of Discharge:  19930203

Length of Service (years, months, days):

	Active:    03  07  14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  8 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  11				AFQT:  53

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (4)		Behavior:  2.6 (4)		OTA:  3.15

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, Navy & Marine Corps Overseas Service 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: 

900730:	NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout.
	Award:  Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 30 days.  Forfeiture of $200.00 per month suspended for 6 months.  No indication of appeal in the record.

900910:	NJP for violation of UCMJ, Article 134: Obtaining services under false pretenses.
	Award:  Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

900918:	Retention Warning:  Advised of deficiency (Misconduct due to minor disciplinary infractions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910219:	NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout.
	Award:  Correctional custody for 30 days, page 13 warning.  No indication of appeal in the record.

910405:	Retention Warning:  Advised of deficiency (Misbehavior of sentinel/lookout; continued lapses in discipline; performance which renders you untrustworthy; lack of taking responsibility for actions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920207:	Applicant to unauthorized absence at 0730.

920211:	Applicant from unauthorized absence at 0730 (4 days/surrendered).

920406:	Applicant to unauthorized absence at 0700.

920407:	Applicant from unauthorized absence at 0700 (1 day).

920505:	Applicant on unauthorized absence 0645 to 0745.

920528:	Applicant on unauthorized absence from 0700 to 1300.

920601:	Applicant on unauthorized absence from 0700 to 1100.

920608:	Applicant to unauthorized absence at 0700.

920610:	Applicant from unauthorized absence at 0930 (2 days/surrendered).

920611:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0700-1100, 920601.
Violation of UCMJ, Article 134: Incapacitation for performance of duties through previous overindulgence in intoxicating liquor on 920601.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

920731:	Applicant on unauthorized absence from 0730 to 0745.

920804:	Retention Warning:  Advised of deficiency (Misbehavior of sentinel or lookout (NJP 900730), obtaining services under false pretenses (NJP 900910), misbehavior of a sentinel or lookout (NJP 910219) UA on 920601, and incapacitation for performance of duties, overindulgence in intoxicating liquor (NJP 920611).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921001:	Applicant on unauthorized absence from 0715 to 0820.

921014:	NJP for violation of UCMJ, Article 86: Unauthorized absence by failing to go to appointed place of duty, to wit: Level III CAAC on 921006.
	Award:  Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

921023:	Applicant on unauthorized absence from 0715 to 0845.

921021:	Applicant on unauthorized absence from 0715 to 0800.

921128:	Applicant on unauthorized absence from 0715 to 0800.

921130:	Applicant to unauthorized absence at 0715.

921201:	Applicant from unauthorized absence at 0715 (1 day).

921201:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

921203:	NJP.  No further information found in service record.  [Extracted from NAVPERS 1070/609, Enlisted Performance Record.]

921208:	Civil Conviction:  General District Court, Traffic Division, Norfolk, VA for violation of improper driving.
	Sentence:  Fined $50.00 plus court costs.

921215:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

921231:	Commanding Officer 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.

930129:	BUPERS directed the Applicant's discharge 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 19930203 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).

Equity – Quality of service and Post service: When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable.  Indeed, the Applicant’s records contain 6 nonjudicial punishment proceedings, 1 civil conviction, and 3 retention warning entries.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.  Relief denied.

Regarding post service, while 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  No relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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