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Docket No. ND04-00123

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

ex-BMSR, USN
Docket No. ND04-00123

Applicant’s Request

The application for discharge review was received on 20031022.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record  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 20040720.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated in letter attached to the application:

“Dear Members of the Board,

I am writing this letter to request to have my Other than Honorable discharge changed to a General under Honorable conditions.  I know that I cannot go back in time to change what I did, but what I can do is tell you what I have done to change the way of thinking that lead to my discharge from the Navy.  For the past four months I have been in the New Creation program, a year long, Christian based, discipleship program that teaches about the Gospel of Christ.  I am learning about the things that Jesus preached.  Some of the things that I have learned are unity, patience, love for my neighbor, the ability to follow orders without question, and the ability to forgive, no matter what someone has done to me.  Enclosed is a teller from my program Chaplin, as evidence that I am in the New Creation program, how long I have been in the program, and a short description of what goes on in the program.  I know, however, that none of these things have made up for the mistakes I had done when I was in the Navy, but I ask for the opportunity to make up amends for what I have done by re-entering the Navy and proving that I am capable of dealing with the responsibilities of being in the Navy.  I thank you for your time, and pray you find it in your hearts to give me one more chance.

Sincerely, F_ L_ L_ IV”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD 214
Reference Letter dated October 9, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981118 - 981130	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  981201		Date of Discharge:  020325

Length of Service (years, months, days):

	Active:    03  03  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  65

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.33 (3)		OTA:  2.49

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSR

Days of Unauthorized Absence:  None
Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

011025:	NJP for violation of UCMJ, Article 86: Absent without leave.
	Award:  Restriction and extra duty for 45 days, reduction to next inferior paygrade (suspended for 6 months).  No indication of appeal in the record.

011224:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Forfeiture of $716.45 pay per month for 1 month, restriction and extra duty for 30 days, reduction to next inferior paygrade (suspension vacated.  No indication of appeal in the record.

020320:	Commander, Cruiser-Destroyer Group EIGHT authorized the Applicant's discharge under other than honorable conditions by reason of misconduct.

NO DISCHARGE PACKAGE AVAILABLE.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020325 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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 award of nonjudicial punishment (NJP) on two occasions for violation of article 86 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 on this basis is 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 or any other evidence relating 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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.