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Docket No. ND05-00346

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

 ex-FR, USN
Docket No. ND05-00346

Applicant’s Request

The application for discharge review was received on 20041217.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.  In the acknowledgement letter, the Applicant was informed that he had reached the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050412.  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. I would like to humbly request that my discharge be upgraded from other than honorable discharge.  I was proud to have served with the men and women that I served with and honored that I was able to serve during the gulf war.  I am very proud to be an American I respect and honor President Bush and continue to uphold all peoples that governed this great country of ours.  I remain ever faithful in prayer to those great men and women who are serving our military now and I praise God for this land of the free and the willingness of those to serve to ensure us this freedom.  I try diligently to keep my life above reproach and a life that honors our lord’s king.  Please hear from my heart that I truly desire to have the honor bestowed upon me of having a honorable or general discharge and for you to hear from my words that I have lived a life dedicated and promising this great land that I live in.  Thank you in advance for all that you can do to make this change.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

Propriety and Equity Issue(s):  The applicant feels that his OTH discharge is inequitable in the light of his generally honorable service.

2.   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 was found guilty of numerous violations of the UCMJ (Articles 86, 92, and 134) over the course of 14 months.  The applicant was an undiagnosed alcoholic during this period and was additionally diagnosed with Personality Disorder in May 1989.  In light of the applicant’s illnesses incurred during military service, the applicant feels that an OTH discharge is inequitable.

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:

Character reference from J_ F_, not dated
Character reference from U_ M_, not dated
Character reference from D_ R_ and B_ R_, not dated
Character reference from S_ M_ and B_ M_, not dated
Character reference from B_ B_, not dated
Character reference from G_ V_ and I_ V_, not dated
Character reference from D_ A. B_, dated November 30, 2004
Character reference from C_ A_ Sr., not dated
Character reference from G_ V_ and A_ V_, dated November 23, 2004
Character reference from P_ P_, dated December 8, 2004
Applicant’s DD Form 214
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860528 - 860613	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  860614		Date of Discharge:  891226

Length of Service (years, months, days):

	Active:    03  06  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  27

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.15 (4)		Behavior:  3.10 (4)		OTA:  3.25

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NER

Days of Unauthorized Absence:  24

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:

870905:	UA from 0700, 870905 to 1230, 870907 (3days).

881027:	NJP for violation of UCMJ, Article 134: Drunkness, on or about 2030, 880917, on Central Avenue between Central and Webster Avenue, in or around Alameda, CA.
	Award: Restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

881028:	Retention Warning from [USS SAMUEL GOMPERS (AD-37)]:  Advised of deficiency (Violation of the UCMJ, Article 134 for Drunkness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890127:	Punishment of RIR to E-2 suspended at CO’s NJP of 881027 vacated due to continued misconduct.

890127:	NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 90: Failure to obey a Commissioned Officer.
Award:  Forfeiture of $391.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.
 
890315:	UA 0640, 890315 to 0630, 890316 (23hours/50minutes).
   
890413:	NJP for violation of UCMJ, Article 86: On or about 890322, without authority, absent himself from his unit, to wit: USS SAMUEL GOMPERS, located at pier 50, San Francisco, CA, and did remain so absent until 890412 (21days).
	Award: Forfeiture of $392.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

890802:	UA from 0700-1200, 890802 (5hours).

890817:	NJP for violation of UCMJ, Article 86: (3 specifications), UA from appointed place of duty; violation of UCMJ, Article 92: Failure to obey a lawful general regulation, [U.S. Navy Regulation Article 1150] by wrongfully possessing alcoholic liquor on board ship.
	Award: Forfeiture of $349.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

890914:	USS SAMUEL GOMPERS (AD-37) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct serious offense as evidenced by violation of the UCMJ, Article 92 and misconduct a pattern of misconduct as evidenced by service record.

890915:	Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.

891016:	UA from 0700-1100, 891016 (4hours).

891016:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct serious offense and misconduct pattern of misconduct, that the misconduct warranted separation.  By a vote of 2 to 1 the Board recommended discharge under other than honorable conditions.
 
891109:	NJP for violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 86: Unauthorized absence from his unit.
Award:  Forfeiture of ½  pay per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

891114:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct serious offense as evidenced by violation of the UCMJ, Article 92 and misconduct a pattern of misconduct as evidenced by service record.

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 in absentia on 19891226 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:  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by the award of four nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absence), Article 92 (Alcohol aboard a ship), Article 128 (Assault), and Article 134 (Drunkenness).  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.  Relief denied.

Issue 2.  To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  

The following is provided for the edification of the Applicant.  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 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, certification of non-involvement with civil authorities, and proof of an alcoholic free lifestyle.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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.