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

ex-EOCR, USN
Docket No. ND03-0137 6

Applicant’s Request

The application for discharge review was received on 20030813.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “- I would like the board to consider the following facts.  I was on the USS CONSTELLATION the first 3 years and I never got into any trouble.  I even received a letter of appreciation for the good work I did.  I also received my first good conduct award.  I went to the SEABEES and I stayed out of trouble for 2 more years.  I was the top scorer in my "A" School as far as grades go, but I messed up in the last couple years.

2.  Dear Sir or Ma’am,
I am writing this letter to try to help you see my side of the events that took place prior to me being discharged from the Navy.  I really enjoyed my time on active duty and I wanted to make a career out of it.  My dream was to retire from the military with a bachelor’s degree.  I ended up making a few mistakes that cost me big.  I was at N.M.C.B.-5 most of my time in where the Command Master Chief was Master Chief E_.  I ended up getting sent to an admin board where they decided to keep me in the navy.  I decided that if I work really hard and keep my nose clean I could make a fresh start at a new command, so I reenlisted.  The next command I was sent to was A.C.B.-l where the Command master chief was Master Chief E_ again.  I don’t believe I was able to get a fair shot at turning my career around with the same C.M.C.  I realize that I’ve made some mistakes but I think I did more good than bad in my time in.  I know the officers on my admin board agreed with me. I guess the biggest reason I would like my discharge upgraded is for the college money.  I don’t have enough money to attend college without it.  Getting that college degree has always been a goal of mine and I would appreciate it if you could help me achieve that goal.  Thank you for your time and consideration on this issue.  I hope you can help.

Respectfully yours,

J_ W_ (Applicant)”

Documentation

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

Certificate of Commendation, dated April 6, 1999
Citation form March to May 2000
Letter of Appreciation, dated November 1, 1996

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941110 - 941204	COG
	Active:  USNR		941205 - 971204	HON

Period of Service Under Review:

Date of Enlistment:  971205		Date of Discharge:  020302

Length of Service (years, months, days):

	Active:    04  03  18
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rate:  EO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (4)	Behavior:  1.25 (4)		OTA:  2.04

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, GCM, NDSM, SSDR (2), Letter of Commendation, Letter of Appreciation

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

971205:	Applicant reenlisted for 4 years.

981013:	Applicant to unauthorized absence 0645 to 0800, 981013.

990305:	NJP for violation of UCMJ, Article 128: Assault consummated by a battery, to wit: headbutting senior Airman on his head on 990207.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to EOCN.  Forfeiture of $300.00 for 1 month suspended for 6 months.  No indication of appeal in the record.

990325:	Applicant to unauthorized 0800 to 0805, 990235.

000401:	Applicant to unauthorized absence 0545 to 0645, 000401.

000826:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 0545-0700, 000821, to wit: morning quarters, violation of UCMJ, Article 92 (2 specs): (1) Assault on 000527, (2) Insubordinate conduct towards EO1 on 000527.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to EOCA.  Forfeiture of $200 for 1 month, restriction and extra duty for 15 days and reduction suspended for 6 months.  No indication of appeal in the record.

000918:	Vacate suspended forfeiture of $200 for 1 month, restriction and extra duty for 15 days and reduction to EOCA awarded at CO’s NJP dated 000826, due to continued misconduct.

010411:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 117:
	Specification: Wrongfully use provoking words, to wit: “Fuck off, you can kiss my ass,” and “Fuck you both, you can have her” on October 1999.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Wrongfully have sexual intercourse with a married woman not his wife April 2000.
	Findings: to Charge I and II specifications thereunder, guilty.
	Sentence: CHL for 30 days, reduction to EOCR.
	CA.  No further information found in service record.
	
010530:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

010530:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010712:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, and recommended retention.

010808:	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.  Commanding Officer’s comments (verbatim): I concur with the Board’s findings that EOCR W_ (Applicant committed misconduct due to commission of serious offense and misconduct due to pattern of misconduct.  However, I do not concur with Board’s recommendation that EOCR W_ (Applicant) be retained in the Naval Service.  His total disregard to the Uniform Code of Military Justice as indicated in paragraph 1.d above is deemed unsuitable for continued military service.  Such actions are intolerable and are not keeping with the good order and discipline expected of our sailors.  He has proven he has no further potential for future Naval Service.  I strongly recommend that he be separated with an Other Than Honorable Discharge.

010821:	Retention Warning.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 020311.]

020228:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by two Commanding Officer’s nonjudicial punishments and one special court-martial n your current enlistment and misconduct due to commission of a serious offense.

020304:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

020311:	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.  Commanding Officer’s comments (verbatim): EOCR W_ (Applicant) reported on board in October 2001 after being retained by the Navy following administrative separation processing for pattern of misconduct and commission of a serious offense.  He was counseled and given a “clean slate” despite his past transgression at a previous command.  However, in spite of this second chance he has not demonstrated the ability to conform to the high standards required by U.S. Naval personnel.  In the short period on board he has had two separate instances of unauthorized absence.  He was not written up on the first unauthorized absence incident but was on the second occasion.  In addition, subsequent to the second unauthorized absence he was written up for disobeying a lawful order issued by a second class petty officer.  The case was referred to CO’s non-judicial punishment for disposition however, EOCR.W_ (Applicant) exercised his right and refused mast.  I then referred the case to summary court martial where again, EOCR W_ (Applicant) exercised his right of refusal.  In lieu of referring the case to special court martial I considered the rehabilitative time between his last administrative separation process and his recent misconduct to be more than adequate to conform and correct his deficiencies.  He has failed in this respect.  His continued misguided behavior and conduct are contrary to good order and discip1ine and indicative of his inability to conform to the high standards of the naval service.  I recommend immediate separation with a discharge under Other Than Honorable conditions.

020315:	COMPHIBGRU THREE 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 20020322 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the available 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.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as other than honorable 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 the award of nonjudicial punishment (NJP) on 2 occasions, and a Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ) to include articles 86, 117, 128 and 134.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

Issue 2.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating to his 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023