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

ex-AO3, USN
Docket No. ND04-00778

Applicant’s Request

The application for discharge review was received on 20040414.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041029.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Copy of DMV Record
Copy of Letter of Commendation from Commanding Officer
Copy of Unofficial Transcript from ITT Technical Institute (3 pages)
Copy of Texas Criminal Record (2 pages)
Copy of Florida Criminal Record (2 pages)
Copy of Marriage License
Employment Reference Letter dated May 7, 2004
Character Reference Letter dated May 20, 2004
Reference Letter dated May 16, 2004 
Cover Letter from Applicant dated June 2, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	911211 - 920525	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920526		Date of Discharge:  970818

Length of Service (years, months, days):

	Active:    05  02  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (extension, term unknown)

Education Level:  12			AFQT:  35

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.52 (5)	Behavior:  3.04 (5)		OTA:  3.41

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, MUC, NAVY”E”, NDSM, SASM, SSDR (2), AFSM, NM, KLM, NUC

Days of Unauthorized Absence:  2

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

951129:	To UA, 0600, 951129.

951130:	From UA, 0635, 951130 (1 day/S). 

960110:	To UA, 0700, 960110.

960111:	From UA 0700, 960111 (1 day/S).

960526:	Extended enlistment (term unknown).

961218:	Civil Conviction:  [General District Court Traffic Division Municipal Center, Virginia Beach, VA] for operating a motor vehicle while under the influence of alcohol (BAC level .14).
Sentence:  Suspended license for twelve (12) months; $309.00 court costs and fines; mandatory attendance of Alcohol Safety Action Program (ASAP) plus $300.00 class fee.  Suspended license was reduced to restricted license for use to and from work only.

970226:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award:  Forfeiture of $279.23 pay per month for 1 month, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

970227:	Recommendation for advancement to AO3 withdrawn this date due to Commanding Officer’s NJP held on 970226 for two specifications of unauthorized absence.

970428:	Admitted to inpatient alcohol rehabilitation treatment.

970523:	Successfully completed Level III alcohol rehabilitation treatment.  Final diagnosis: alcohol and nicotine dependence.

970818:	Evaluation Report & Counseling Record, comments.  Military Bearing/Character: Evaluation submitted due to member’s separation from Naval Service for two civil convictions and a military conviction.

970818:	Applicant discharged general (under honorable conditions) by reason of misconduct due to the commission of a serious offense, authority: MILPERSMAN 3630600.

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970818 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

The Applicant introduced no decisional issues for consideration by the Board.  A characterization of service of under honorable conditions (general) 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 one occasion and two civil convictions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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 may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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