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

 ex-OSSN, USN
Docket No. ND01-00728

Applicant’s Request

The application for discharge review, received 010501, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127.  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 (veerbatim)

1.  During my Naval career I never got in trouble out in town.  All of my incidents accrued on the ship.  I quickly advanced in Rank.  I was watch supervisor qualified as an OS3 in 1 yr.  I did a lot of good things for the U.S. Navy.  I was responsible for the safe navigation of the USS CORONADO during sea and anchor detail.  I was responsible for supervision of 17 shipmates.  I never used drugs in the military, and my alcoholism only got me in trouble on the beat.  My uniform is always squared away, and I never jeopardized the lives of my shipmates, I was never UA, nor did I miss a day due to any reason.  I even worked when I was sick.  I love defending my country.  I never received a DUI or any type of violation on base, nor in a city, and I was always 100% committed to my country.  I really enjoyed my time in the world’s finest navy and I would like greatly appreciated if my discharge could be moved up 1 position.  Thank you.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			None
	Inactive: USNR (DEP)	971115 - 980216	COG

Period of Service Under Review:

Date of Enlistment:  980217		Date of Discharge:  000629

Length of Service (years, months, days):

	Active:    02  04  13
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  14			AFQT:  46

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  1.66 (3)		OTA:  3.20 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

981014:	Retention Warning:  Advised of deficiency (Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

981014:	NJP for violation of UCMJ, Article 128: Did on or about 980915 at Club Metro located on Naval Station San Diego assault UT3 S___ W____, who then was and was then known by the accused to be a person then having in the execution of military police duties, by pulling down forcefully on W____'s right arm (gun arm). 
Award:  Restriction to the limits of CORONADO for 14 days, extra duty for 14 days, fined $200.00 (suspended).  No indication of appeal in the record.

990401:	Retention Warning:  Advised of deficiency (Drunk and disorderly conduct which was of a nature to bring discredit upon the armed forces and indecent exposure), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990923:	Retention Warning:  Advised of deficiency (Drunk and disorderly conduct which was of a nature to bring discredit upon the armed forces), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990923:	NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
Award:  Forfeiture of $588.90 per month for 2 months, restriction for 60 days, reduction to E-3 (suspended for 3 months).  No indication of appeal in the record.

000523:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 000518, tested positive for [THC].

000524:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (THC).
Award:  Forfeiture of $617.80 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

000529:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.

000529:  	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 

000613:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse (use). 

000616:	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 000629 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.  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 three occasions and adverse counseling entries on other occasions.  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.  An upgrade would be inappropriate.  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