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Docket No. ND02-00790

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

 ex-UTCR, USN
Docket No. ND02-00790

Applicant’s Request

The application for discharge review, received 020513, 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 by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206.  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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Pattern of misconduct was for Dwi and discharge of weapon around civilian nationalist.

I have been in counseling for my alcohol problem and completed the Ozark guidance center for alcohol & drugs

I was sent to captain’s mass for the other charge, which I could not defend myself.  We were on Fex in Japan and were supposed to be aggressed.  When I saw movement in the weeds I fired (blanks) with a B.F.A. on my weapon and not in a line of civilian.

I have completed a 4 years collage and now have held a job as a journeyman plumber in the State of Ark for 4 years now as a productive member of society.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 11/12/02 and the following comments are hereby submitted. We concur with the Applicant's contention that his discharged.

We refer this case to the Board for careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to General.

Documentation

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

Certificate as Journeyman Plumber dated May 1997
NTI certificate for plumbing related subjects dated March 25, 1997
Certificate of Completion dated March 25, 1997

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880831 - 880901	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880902		Date of Discharge:  910419

Length of Service (years, months, days):

	Active:    02  07  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  37

Highest Rate:  UTCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.07 (3)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, SSDR (2), NDSM

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:

900108:	Civil Conviction: Municipal Court of Gulfport, MS for violation of public intoxication on 891215.
Sentence: Fined $40.00. 

900803:	NJP for violation of UCMJ, Article 92: Dereliction of duty, failure to maintain proper lookout and failure to walk post in military manner while a sentry during field exercise on 900617, to wit: wearing a Walkman-type tape player over his ears and dancing while walking his post, violation of UCMJ, Article 134: Incapacitated for duty due to prior overindulgence in intoxicating liquor on 900609.
	Award: Forfeiture of $405 per month for 1 month, restriction and extra duty for 30 days, reduction to UTCA.  Reduction suspended for 6 months.  No indication of appeal in the record.

910118:	Vacate reduction to UTCA awarded at CO's NJP dated 900803.

910118:	NJP for violation of UCMJ, Article 111: Drunken driving on 901215.
	Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

910118:	Retention Warning from U.S. Naval Mobile Construction Battalion SEVEN:  Advised of deficiency (Alcohol abuse as evidenced by the charges of which Applicant was found guilty at captain's mast 3 Aug 90 and 18 Jan 91.  Immature behavior as exemplified by the dereliction of duty charge (3 Aug 90)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910208:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 0620 - 0700, 910116, (2) Unauthorized absence from 0630 - 1300, 910124, (3) Unauthorized absence from 0630 - 1100, 910125, (4) Unauthorized absence from 0630 - 0800, 910131.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 30 days, reduction to UTCR.  No indication of appeal in the record.

910212:	Applicant considered psychologically dependent on alcohol.  Recommended for Level III.

910213:	U.S. Naval Mobile Construction Battalion SEVEN 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 having received nonjudicial punishment at captain's mast on 3 August 1990, 18 January 1991, and 8 February 1991 and by reason of commission of a serious offense as evidenced by having been found guilty at captain's mast on 3 August 1990 of willful dereliction of duty and on 18 January 1991 of drunken driving.

910214:	Applicant advised of rights and having consulted 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 and submit a statement.

910227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

910320:	CNMPC 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 910419 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).

Issues 1 and 2. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, a civil conviction, and an adverse counseling entry on another occasion.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ A 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

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:  A6710/A9221/A9217/A9223/A9227/