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Docket No. ND04-01272

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

 ex-AOAR, USN
Docket No. ND04-01272

Applicant’s Request

The application for discharge review was received on 20040810.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed the Veterans of Foreign Wars as the 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  After a thorough review of the available 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.  “I am requesting a review to change my discharge to Under Honorable conditions.  I am prepared to attend a personal hearing and relate all facts and circumstances related to my discharge.  I believe after a full review of all facts and circumstances the BOARD will be compassionate and grant this application.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“Equity Issue(s):  The applicant requests that the equity of his discharge be considered in light of mitigating circumstances.  He also request that his post service history be considered.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant requests that the Board afford him all due consideration regarding his request for a discharge upgrade.  The applicant regrets his transgressions and asks that the Board consider his mental state during his Uncle’s death.   
The Veterans of Foreign Wars’ 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 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.
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 (Member 1)
Letter from Veterans of Foreign Wars, dated August 06, 2004
Character reference, dated February 11, 2005
Character reference, undated
Character reference from Chairman of Deacon Board, Friendship Baptist Church, dated February 7, 2005
Letter from Applicant, dated February 25, 2005
Letter from Veterans of Foreign Wars, dated 28 April 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980930 - 981109	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  981110		Date of Discharge:  000911

Length of Service (years, months, days):

	Active:    01 10 02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.17

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, SSDR

Days of Unauthorized Absence:  12

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:

981110:	Applicant reported for initial tour of active duty.

990130:	Applicant reports aboard NATTC Pensacola.

990323:	Retention Warning: Advised of deficiency (Alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
990331:	NJP for violation of UCMJ, Article 86 (8 specs): Unauthorized absence – muster, violation of UCMJ, Article 92 (2 specs): Orders violation.
	Award: Forfeiture of $225 per month for 1 month, correctional custody for 30 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

990331:	Retention Warning:  Advised of deficiency [NJP held on 990331 for Article 86 (unauthorized absence) and Article 92 (orders violation)], notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990601:	Applicant reports aboard USS Eisenhower (CVN-67).
	
000109	Applicant to unauthorized absence 0700, 000109.

000110:	Applicant from unauthorized absence 0730, 000110 (1 day/surrendered).

000111	Applicant to unauthorized absence 0700, 000111.

000112:	Applicant from unauthorized absence 0800, 000112 (1 day/surrendered).

000204:	Applicant to unauthorized absence 0700, 000204.

000207:	Applicant from unauthorized absence 0700, 000207 (3 days/surrendered).

000211	Applicant to unauthorized absence 0700, 000211.

000218:	Applicant from unauthorized absence 0700, 000218 (7 days/surrendered).

000306:	Uncle allegedly dies (unsubstantiated).

000619:	NJP for violation of UCMJ, Article 86 (4 specs): Fail to go at the prescribed time to appointed place of duty, violation of UCMJ, Article 89: Disrespect towards Executive Officer.
	Award: Forfeiture of $564 per month for 1 month, restriction for 30 days, reduction to E-2.  No indication of appeal in the record.

000629:	NJP for violation of UCMJ, Article 86 (3 specs):  Fail to go at the prescribed time to appointed place of duty, to wit: restriction muster.
	Award: Reduction to E-1.  No indication of appeal in the record.

000702:	NJP for violation of UCMJ, Article 86: Failure to go at time prescribed to appointed place of duty on 000702, to wit: restricted personnel muster.
	Award: Restriction and extra duty for 14 days.  No indication of appeal in the record.

000706:	NJP for violation of UCMJ, Article 86: Failure to go at time prescribed to your appointed place of duty on 000705, to wit: restricted personnel muster.
	Award: Bread and water for 3 days.  No indication of appeal in the record.

000911:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Article 89 and 92 (2) violations], authority:  NAVMILPERSMAN, Article 1910-142.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000911 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in the absence of a complete discharge package (E).    

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 two retention warnings and five nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 89 (disrespect toward a superior commissioned officer) and 92 (failure to obey order) of the UCMJ.  The violations of articles 89 and 92 each meet the criteria for discharge by reason of commission of a serious offense.  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.

The Applicant contends his disciplinary problems were the result of stress caused by his “mental state during his Uncle’s death”.  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.  The record provides irrefutable documentation showing the Applicant was given multiple opportunities to correct his behavior prior to his discharge.  Furthermore, the command provided specific guidance to the Applicant of who he should ask for assistance and counseling.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.

The Applicant’s representative submitted the following issue:  The Applicant requests that the equity of his discharge be considered also include provisions of SECNAVINST 5420.174D as it pertains to post-service conduct, in assessing the merits of his application.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided three letters of recommendation from members of his church and family friends as documentation of his post-service conduct.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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), Change 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 89 (disrespect toward a superior commissioned officer) and Article 92 (Failure to obey order) if adjudged at a Special or General Court Martial

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.

E.  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.

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.