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Docket No. ND03-01242

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

ex-BUCA, USN
Docket No. ND03-01242

Applicant’s Request

The application for discharge review was received on 20030718.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to St. Petersburg, FL.  The Applicant did not list any 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, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged after completing the Desert Storm tour.  I was much younger & did not have good morale.
 
  I had a child on the way & the baby’s mother mother had died I felt that I had to get back home in order to take care of her & the child.  I was under a lot of stress & really didn’t know how to deal with it considering I was young & all this was very knew to me.

  I made a mistake & would like to have my discharge changed in order to better my life & job situation.”

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):

	Inactive: USNR (DEP)	881026 - 890723	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890724		Date of Discharge:  930303

Length of Service (years, months, days):

	Active:    03  07  09
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  44

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (4)	Behavior:  3.35 (4)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, KLM, SASM(3, w/ FMF) CGSOSR, NUC, BATTLE “E”(2), SSDR(2), Rifle Marksmanship

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

911121:	NJP for violation of UCMJ, Article 92: (2 Specifications), Specification 1: Was dereliction in the performance of his duties on 910823; Specification 2: Wrongfully consuming alcoholic beverage while under age 21 on 910913, violation of UCMJ Article 111: Operate a vehicle while drunk on 910913.
	Award:  Correctional Custody for 30 days, forfeiture of $300.00 pay per month for 2 months, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

930212:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 930119.
	Award:  Forfeiture of $457.00 pay per month for 2 months, restriction to NCBC, Port Hueneme, CA, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

930216:	Drug and Alcohol Dependency Evaluation indicates drug abuse, this appears to be an isolated event of marijuana use.  There does not appear to be any drug dependency at this time, recommended for Level I Treatment.

930216:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the CO’s NJP of 930214, at which you were found guilty of violating the UCMJ, Article 112a-Wronful use of marijuana and misconduct due to commission of a serious offense as evidenced by the CO’s NJP of 911121, at which you were found guilty of violating the UCMJ, Article 92-Failed to obey lawful written order, to wit: CBCINST 1620.6K dated 890703, by wrongfully consuming alcoholic beverages while under the age of 21 years old; and Article 111-Operate a passenger car while drunk.

930216:	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.

930217:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

930224:	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 19930303 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.   The Applicant contends that his problems in the Navy can be attributed to his family situation.  While he may feel that his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 two nonjudicial punishment proceedings for violations of Articles 92, 111 and 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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), effective 15 Aug 91 until 
04 Mar 93, 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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