Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00958

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

 ex-AN, USN
Docket No. ND00-00958

Applicant’s Request

The application for discharge review, received 000811, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 010215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  NJP for last transgression was 45 days restriction, 45 days extra duty, and $522.00 pay withheld for one month.  To be discharged other than honorably is not justified, aswauth.

2.  I was discharged twenty-one days before the date of my completion of service.  My discharge was not equitable being so close to my end of service, aswauth.

3.  Last evaluation stated that I "served with honor" in the Persian Gulf expedition, and marks for military bearing on evaluation dated 31 January 1992 were 3.4. Ribbons, and medals received for participation in the Gulf expedition, including a combat action ribbon, and the Kuwait Liberation Medal.  This is not the character of other than honorable service, aswauth.

4.  I submit that other than the isolated alcohol related incidents, which I by no means make light of or condone, that my service in the Navy was honorable.  I also submit that since leaving the military, I have behaved responsibly by applying myself to my education.  I have acquired an A.S. degree and three Federal Aviation administration-issued Licenses, I am now gainfully employed and continuing toward a bachelor degree.  I believe that my behavior while in the Navy did not warrant such a discharge, and that my behavior since deserves due consideration.

Documentation

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

Copy of Associate Degree in Science
Copy of Certificate of Graduation (Powerplant Maintenance Technician School)
Copy of Aviation Maintenance Technician Certificate (Airframe Maintenance Technician)
Copy of Certificate of Completion (Primary Pilot Ground School)
Copy of DD Form 214
Letter of Commendation from MT. San Antonio College
Reference Letter from MT San Antonio College
Letter of Recommendation
Transcript Request
Transcript (2pgs)
Transcript (3pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	870716 - 870908	COG

Period of Service Under Review:

Date of Enlistment:  870909		Date of Discharge:  920819

Length of Service (years, months, days):

	Active:    04  11  10
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  70

Highest Rate:  AWAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.26 (6)	Behavior:  3.20 (7)		OTA:  3.23

Military Decorations:  None

Unit/Campaign/Service Awards:  CAR, NUC, KLM, NDSM, SASM(2^ND), SSDR 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900118:	NJP for violation of UCMJ, Article 86: Absent from unit.
	Award:  Restriction and extra duty for 7 days.  No indication of appeal in the record.

910415:	NJP for violation of UCMJ, Article 91: (2 Specifications), Spec 1: Disrespect to a chief petty officer, Spec 2: Disrespectful in deportment toward a chief petty officer.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

910416:	Retention Warning from [USS TRIPOLI (LPH 10) FPO SAN FRANCISCO]:  Advised of deficiency (You violated Article 86 of the UCMJ, UA, from your unit and Article 91, disrespect towards a Chief Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920521:	NJP for violation of UCMJ, Article 134: Incapacitated for the performance of duty on or about 920515, as a result of wrongful overindulgence in intoxicating liquor, Incapacitated for the proper performance of duty (BAC.232%).
	Award:  Forfeiture of $522.00 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

920620:	[USS TRIPOLI (LPH 10)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your Commanding Officer's Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 18 Jan 90, violation of the UCMJ, Article 86, unauthorized absence from unit (1 Specification).  Your Commanding Officer's Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 15 Apr 91, violation of the UCMJ, Article 91, disrespect to a Chief Petty Officer (2 Specifications).  Your Commanding Officer's Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 21 May 92, violation of the UCMJ, Article 134, incapacitated for the performance of duty due to prior wrongful overindulgence in intoxicating liquor.  Additionally, you are being processed for misconduct due to commission of a serious offense as evidenced by your Commanding Officer's Nonjudicial of 15 Apr 91, violating of the UCMJ, Article 91, disrespect to a Chief Petty Officer (2 Specifications).

920622:  	Applicant advised of his 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.

920622:	Medical Officer's evaluation indicated applicant is not dependent  on alcohol or drugs.

920623:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding officer’s comments (verbatim):  AN_____(applicant) reported to TRIPOLI on 9OCT89 from VS 41, NAS, North Island, CA.  While serving in the air dept, AN______(applicant) was a competent individual who had the potential to become an excellent ABH; however, he lacked the motivation and desire to improve himself.  He required some supervision and was frequently late for duty.  AN_____(applicant) refused to complete his advancement requirements and was not recommended for advancement.  He has received three NJP’s onboard orig, the last of which involved alcohol.  AN_____(applicant) was diagnosed by the medical doctor onboard orig as not alcohol or drug dependent.  AN______(applicant) has no potential for further naval service and should be processed for an other than honorable discharge.

920812:	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 920819 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to applicant’s issue 1, the applicant’s former command did not discharge the applicant based on his last NJP.  The applicant was discharged from the Navy for a pattern of misconduct based on three NJP’s over a 28-month period.  The applicant violated a retention warning after his second NJP therefore warranting a discharge for pattern of misconduct.  No relief will be granted concerning this issue.

In response to applicant’s issue 2, the Board regrets the applicant was discharged close to his completion of service date.  However, the applicant violated UCMJ Article 134 four months prior to his completion of service resulting in his third NJP.  This issue has no merit.

In response to issues 3 and 4, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a few "isolated incidents".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  Even though the applicant has a good record of service, he is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.  

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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service educational and employment accomplishments, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy. However, the applicant’s efforts need to be more encompassing than those provided.  The applicant needs to produce documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended.  The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol free lifestyle.  Verifiable documentation of such a lifestyle is essential.  The applicant is encouraged to apply for a personal appearance hearing prior to 19 August 2007. 

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for disrespect to a chief petty officer, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9223/A9207/A9201