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Docket No. ND02-01252

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

ex-CR, USNR
Docket No. ND02-01252

Applicant’s Request

The application for discharge review, received 020904, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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 service and the reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.	(Equity Issue)  This former member requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

2.  (Equity Issue) This former member further opines that his narrative reason for discharge was erroneously issued and warrants correction.

Documentation

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

Letter of Recommendation from   J---H. B------, dated 03APR02
Letter of Recommendation from   D---E. D-----, dated 03MAY02
Letter of Recommendation from   I---C. M-----, dated 04APR02
Letter of Recommendation from   E---R. M----, dated 11NOV96
Letter of Recommendation from   D---C. M----, dated 15OCT02
Letter of Recommendation from   M---S. M----, dated 10OCT02
Copy of Credit Report on Applicant, dated 16OCT02
Letter from Applicant, dated 5MAR03
Copy of Job Announcement
Letter from D---S. S----,undated
Letter of Recommendation from M---M----, dated 11FEB03
Letter of Recommendation from  W---G & V---G-----, dated 13OCT02
Letter of Recommendation from A---S------, dated 20MAR03

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None		
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  950825		Date of Discharge:  960821

Length of Service (years, months, days):

	Active:    00 06  27
	Inactive:  00 05  10

Age at Entry:  19			Years Contracted:  3 (24 months extension)

Education Level:  12			AFQT:  63

Highest Rate:  CR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA  	Behavior:  NMA		OTA:  NMA

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/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

960205:	Commenced 36 months active duty under Seaman Apprenticeship Program.

960801:	NJP for violation of UCMJ, Article 92:  Failure to Obey Written Order or Regulation, violation of UCMJ Article 112a: Wrongful Possession of Controlled Substance, Specification-In that Applicant did purchase 5 hits of LSD from an undercover Air Force Officer of Special Investigation Office on 31July1996.
	Award:  14 days restriction and extra duty for 14 days, Forfeiture of 7 days pay, and processing for Administrative Discharge.

960805:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960805:	Applicant advised of his 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.
		Applicant did not object to separation.

960805:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by non-judicial punishment awarded on 01AUG96, in which the SNM was charged with violation of UCMJ Art. 112a, wrongful possession of a control substance and UCMJ Art. 92, failure to obey written order of regulation on 01AUG96.

960819:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960821 under other than honorable conditions for misconduct due to commission of a serious offense (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:  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.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  His service record is marred by award of non-judicial punishment (NJP) for wrongful possession of a controlled substance, thus substantiating the misconduct.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors guilty of illegal drug possession normally receive a discharge characterization of under other than honorable conditions. 

Issue 2:  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that the Applicant disobeyed an order and thus committing the serious offense for which the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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.
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