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Docket No. ND04-01215

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

 ex-FR, USN
Docket No. ND04-01215

Applicant’s Request

The application for discharge review was received on 20040726.  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.  
In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant advised the Board that he was unable to afford a trip to Washington DC for a personal appearance.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050224.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

The easiest way to explain the way I was discharged is that I was greatly influenced to take an early discharge.  I do admit that I did drink under age and was involved in many fights.  I wish I could go back and change things in my past, mostly my time in the navy.

Bottom line is that I was told that I either go to an insane asylum or get an early discharge, I chose the early discharge and did not realize that it would be under anything other than an honorable condition.

Thank you for your time
R_ B_ (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflects that this former member maintained satisfactory performance and conduct markings with a 3.20 OTA and earned the SSBNDPP (3).  He was awarded NJP on 880615 for VUCMJ, Art. 92;  NJP on 890131 for VUCMJ, Art. 91;  NJP on 890331 for VUCMJ, Art. 91 and NJP on 891122 for VUCMJ, Art. 92.  Following due process notifications, he was discharged on 891222 Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he regrets his misconduct and because he has been a productive citizen since his separation.  He has submitted 2 pages of additional documentation attesting to his good post-service character and hard work for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Letter from the Applicant, dated August 10, 2004
Character reference, dated August 16, 2004
Job reference, dated August 16, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870620 - 870624	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870625		Date of Discharge:  891222

Length of Service (years, months, days):

	Active:    02  05  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  30

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (3)		Behavior:  3.20 (4)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSBNDPP (3)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880615:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 880609, to wit: failed to attend delinquent studies.
	Award: Oral admonition.  No indication of appeal in the record.

890131:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards Petty Officer on 890131.  [Partially extracted from CO’s message dated 891206.]
	Award: Reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

890201:	Retention Warning from USS ALABAMA (SSBN 731): Advised of deficiency (You have received nonjudicial punishment on two separate occasions.  In June 1988 you were found in violation of UCMJ Article 92: Failure to obey a lawful order.  In January 1989 you were found in violation of UCMJ Article 91.  This clearly indicates a disrespectful attitude towards authority and constructive criticism.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890331:	Vacate suspended reduction to E-2 awarded at CO’s NJP dated 890131 due to continued misconduct.

890331:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards petty officer.
	Award: Forfeiture of $200 per month for 1 month, reduction to E-1.  Reduction suspended for six months.  No indication of appeal in the record.

891122:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation by wrongfully drinking alcohol while under the legal age of 21.
	Award: Reduction to E-1.  No indication of appeal in the record.

891204:	USS ALABAMA (SSBN 731) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by Applicant’s service record.  Applicant notified that least favorable characterization of discharge is under other than honorable conditions.

891204:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

891206:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

891206:	Drug and Alcohol Abuse Report: Alcohol abuse.  Medical on 890912.  CAAC found Applicant not dependent and recommended Level I.  Physician found Applicant not dependent and recommended Level II.  Commanding Officer recommended separation.  Comments: Military work record is subpar per enlisted performance evaluations, LCPO, Div Officer, and Department Head input.  Pattern of misconduct discharge in progress.  Member not viewed as having potential for further/future naval service.  SUMMARY: Member admitted to naval hospital for overdose of Moltrin (small handful).  Denied any intent of harm to himself , was violent to those around him.  Alcohol was a contributing factor.

891214:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891222 under other than honorable conditions for misconduct due to a pattern of misconduct (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 impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 insubordinate conduct towards superiors and orders violations.  This misconduct resulted in four separate nonjudicial punishment proceedings for violations of UCMJ Articles 91, and 92.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends he was told he could accept a discharge or be forced to go to an insane asylum.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was threatened with commitment to an asylum during his discharge processing.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant further contends that he was not informed that his discharge might be characterized as under other than honorable conditions.  Contrary to the Applicant’s claims, the record contains the Applicant’s signed notice of administrative board procedure proposed actions which indicates the least favorable characterization of Applicant’s service as under other than honorable conditions.  Applicant’s signature indicates that he received the letter and understood its contents.  As such, the Applicant was fully aware, or should have been fully aware, that his impending discharge could result in a characterization of under other than honorable conditions.  The Applicant’s contention is without merit.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.