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Docket No. ND06-00080

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

FOR OFFICIAL USE ONLY

 ex-AEAR, USN
Docket No. ND06-00080

Applicant’s Request

The application for discharge review was received on 20051012.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726.  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 General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting an upgrade so I can try to use my GI Bill to help pay for college.”

Applicant’s representative, American Legion, submitted no issues for consideration.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Bellevue Community College student schedule, Fall 2005
Applicant’s pay stub for period ending September 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000727 - 20010723	ELS
		 USNR (DEP)	20010731 - 20011014	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011015		Date of Discharge:  20040420

Length of Service (years, months, days):

	Active:    02  06  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 

Education Level:  11 GED			AFQT:  86

Highest Rate:  AEAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Overseas Service Ribbon

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

030117:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $500, extra duty for 14 days.  No indication of appeal in the record.  [Extracted from Report and Disposition of Offense(s) dated 040217.]

031203:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Specification: In that Aviation Electrician’s Mate Airman C_ A. C_(Applicant), U.S. Navy, Fleet Logistics Support Squadron Three Zero, Detachment Five, did on or about 2359, 26 November 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: USS Kitty Hawk at expiration of liberty.
	Award:  Forfeiture of $300 per month for 1 month, confinement on bread and water for 3 days, reduction to E-2.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

031203:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86 (Absence without Leave)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040105:	U.S. Naval Hospital, Yokosuka, Japan.
Applicant referred for alcohol screening due to command concern.  Assessment: Alcohol abuse.  Recommend Intensive Outpatient Treatment for alcohol abuse.
Plan:  “...1)  Fit for duty: YES  2) The member IS able to distinguish right from wrong and IS responsible for her [sic] actions...”

040202:	U.S. Naval Hospital, Yokosuka, Japan.
Applicant to Intensive Outpatient Treatment Program for alcohol abuse.

040213:	U.S. Naval Hospital, Yokosuka, Japan.
Applicant completed Intensive Outpatient Treatment Program.  Assessment:  1. Alcohol abuse.  2. Good prognosis upon release.
Plan:  “...1.  Patient is fit for full duty.  He is capable of making conscious choices and is responsible for his actions...”

040312:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Specification: In that Aviation Electrician’s Mate Airman C_ A. C_(Applicant), U.S. Navy, Fleet Logistics Support Squadron Three Zero, Detachment Five, Atsugi, Japan, having knowledge of a lawful order issued by Aviation Electrician’s Mate Chief L_ E. E_, to wit: Report immediately to the squadron duty office to stand watch, an order which it was his duty to obey, did, on board Naval Station Yokosuka, Japan, on or about 2045, 16 February 2004, fail to obey the same by leaving the base and failing to report to duty until on or about 0000, 17 February 2004.
	Award:  Forfeiture of $300 per month for 1 month, reduction to E-1.  No indication of appeal in the record.

040324:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of pattern of misconduct.

040325:	Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation and submit a statement.

040326:	Officer in Charge, VRC-30 Detachment FIVE, recommended discharge with a general (under honorable conditions) by reason of pattern of misconduct.  Commanding Officer’s comments:  “AEAR C_(Applicant) has proven to be a sub-standard performer, at best, mainly because so much of his time and effort has been dedicated to correcting deficiencies in his off-duty behavior.  In view of CNFJ directives and recent publicity of off-duty behavior by numerous US personnel in 7^th Fleet AOE, my small command simply cannot take the risk of keeping anyone with AEAR C_(Applicant)’s record here in theater.”

040328:	Commander, Carrier Air Wing FIVE, directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.

040408:	Applicant found physically fit for separation.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040420 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  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 Board presumed regularity in the conduct of governmental affairs (E).

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.  A general 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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  Violations of Article 92 are considered serious offenses.  In addition, the Applicant was referred to treatment for alcohol abuse.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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 post-service documentation for the Board to consider.  Relief denied.

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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey order/regulation.

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, Para 211, Regularity of Government Affairs.  

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