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

 ex-ET3, USN
Docket No. ND01-01022

Applicant’s Request

The application for discharge review, received 010802, 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.  Subsequent to the application, the applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517.  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.  (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Character reference dated November 9, 2001 with attachment
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			960610 - 980831	HON
	Inactive: USNR (DEP)	950623 - 960609	COG

Period of Service Under Review:

Date of Enlistment:  980901		Date of Discharge:  000606

Length of Service (years, months, days):

	Active:    01  09  06
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  94

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.29

Military Decorations:  None

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

Days of Unauthorized Absence:  59

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:

991009:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715, 15Sep99 to 1415, 26Sep99 (11 days/surrendered). violation of UCMJ, Article 87: Missing ship's movement on 15Sep99
	Award: Restriction and extra duty for 30 days, reduction to ET3.  No indication of appeal in the record.

991009:	Retention Warning:  Advised of deficiency (You appeared before the Commanding Officer on 9 October 1999 for unauthorized absence and missing ship's movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000403:	Applicant to ARD Norfolk, VA.

000406:	Applicant from ARD, Norfolk, VA.

000504:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1530, 14Jan00 to 0745, 02Mar00 (48 days/surrendered), violation of UCMJ, Article 112A: Wrongfully use a controlled substance, to wit: ecstasy.
	Award: Forfeiture of $200 per month for 1month, restriction and extra duty for 30 days.  No indication of appeal in the record.

000504:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and a pattern of misconduct.

000504:	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 

000518:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse.

Partial discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000606 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 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 is evident 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