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Docket No. ND04-00625

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

 ex-AC3, USN
Docket No. ND04-00625

Applicant’s Request

The application for discharge review was received on 20040302.  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 discharge 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 20041022.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Board of Review: Upon review of my application, my service records will indicate that an upgrade of my discharge is not deserving.  The incidents that lead to my dismissal, I am fully accountable for.  As a young airman stationed in Japan, on a forward deployed aircraft carrier, was a little overwhelming.  As a young minded sailor, I often turned to alcohol, which was the cause of most of my incidents.  However, in the civilian sector, I do not have any criminal record or previous engagements involving alcohol.  In my defense as for my naval career, I only have these arguments: 1) I have served continuously on active duty for 3 years 2) I served in a combat zone and received national defense service medal.  I am making efforts to upgrade my discharge to receive my G.I. Bill (That I paid $1200) to better myself with education.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990908 - 990922	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990923		Date of Discharge:  021213

Length of Service (years, months, days):

	Active:    03  02  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  63

Highest Rate:  AC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.75 (4)	Behavior:  1.75 (4)		OTA:  2.43

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000215:	NJP for violation of UCMJ, Article 91:  Disrespectful toward a superior petty officer, violation of UCMJ, Article 92: Violating a lawful order by using racist language, violation of UCMJ, Article 111: Drunken operation of a vehicle, violation of UCMJ, Article 117: Wrongfully using provoking speeches and gestures, violation of UCMJ, Article 134: Drunk and disorderly conduct.
	Award:  Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000215:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment on 15 February 2000, for VUCMJ ART 91, Disrespect towards a first class petty officer on 07 February 2000; VUCMJ ART 92, Violation of SECNAVINST 5300.26, Wrongfully making racial slurs to a first class petty officer; VUCMJ ART 111, Drunken operation of a vehicle on 07 February 2000; VUCMJ ART 134, Drunk and disorderly on 07 February 2000), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011010:	NJP for violation of UCMJ, Article 91:  Disrespectful toward a superior petty officer (4 Specifications).
	Award:  Forfeiture of $654 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

021011:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021011:  	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.

021015:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

021022:	Commander, Carrier Group FIVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021028:	NJP for violation of UCMJ, Article 134:  Incapacitated for duty.
	Award:  Forfeiture of $657 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

021213:	Applicant discharged from active duty.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021213 under other than honorable conditions for misconduct due to the 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:  When the service of a member of the 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 award of nonjudicial punishment (NJP) on three occasions for violations of Articles 91, 92, 111, 117, and 134 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 educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION 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.