Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-00397

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

 ex-AR, USN
Docket No. ND01-00397

Applicant’s Request

The application for discharge review, received 010212, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221.  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 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

1.  We ask after your review of the evidence of record that you change the discharge as requested by the applicant.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970910 - 970921	COG

Period of Service Under Review:

Date of Enlistment:  970922		Date of Discharge:  000531

Length of Service (years, months, days):

	Active:    02  08  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  9			AFQT:  40

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, MUC

Days of Unauthorized Absence:  2

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:

980713:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 9Jul98.
	Award: Restriction for 15 days.  No indication of appeal in the record.

980713:	Retention Warning:  Advised of deficiency (Unauthorized absence and incapacitated for duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990129:	Applicant to unauthorized absence 0700, 29Jan99.

990131:	Applicant from unauthorized absence 0700, 31Jan99 (2 days/surrendered).

990301:	Applicant to alcohol rehabilitation.  Intensive outpatient treatment.

990402:	Applicant released from alcohol rehabilitation.  Diagnosis: Alcohol dependence in partial remission.

990713:	NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence, violation of UCMJ, Article 95: Resisting arrest, violation of UCMJ, Article 134 (5 specs): Drunk and disorderly, underage drinking, incapacitated for duty.
	Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  No indication of appeal in the record.

000118:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 81:
	Specification: On diverse occasions between July and August 1999, conspire to commit an offense under UCMJ, wrongfully introduce a controlled substance on board a naval installation.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Having knowledge of a lawful order that while in restricted status, not permitted to drink any alcoholic beverages, about the period of July 1999, fail to obey the same.
	Charge III: violation of the UCMJ, Article 112A:
	Specification:  On diverse occasions between July and August 1999, wrongful use methamphetamine.
Findings: to Charge I, II and III and specifications thereunder, guilty.
	Sentence: CHL for 75 days, forfeiture of $650 per month for 2 months, reduction to AR.
	CA 000524:  Sentence approved and ordered executed.

000320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and drug abuse.

000320:  	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. 

000324:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and drug abuse.

000328:	Commander, Navy Region Northwest 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 000531 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 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’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited consideration for recharacterization of the discharge.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  A characterization of service of 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.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions, and a special court-martial on one occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.   Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding 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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, 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 “afls10.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/A0100/A9500/A9217/A9223/A9225/A9221