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Docket No. ND06-00197

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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00197

Applicant’s Request

The application for discharge review was received on 20051108.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130.  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 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 a upgrade because I made a huge mistake with underage drinking while in the Navy.  I’ve carried a lot of what the Navy taught me, such as team player & strong work ethic skills to my present career.  I was stupid when I was young.  And regret my huge mental error.  Ive since grown a lot from that experience.  And no longer drink at all.  I let my country down & truly regret doing what I did.  I am hoping the boards Action will be a change to General/under honorable Conditions.  Thank you for your time regardless of the decision.”

Documentation

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

Applicant’s DD Form 214  (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920206 – 19920719	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920720		Date of Discharge:  19940408

Length of Service (years, months, days):

	Active:    01  08  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  24 days
	Confinement:		  13 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  57

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (2)		Behavior:  2.0 (2)			OTA:  2.3

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia Service Medal w/Bronze Star, Sea Service Development Ribbon, Armed Forces Expeditionary Medal, Battle “E” Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

930614:	Applicant to unauthorized absence.

930615:	Applicant missed ship movement (USS Abraham Lincoln (CVN 72)).

930708:	Applicant from unauthorized absence at 0800 (24 days/surrendered).

930827:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: unauthorized absence from 930614 to 930708.
	Charge II:  violation of the UCMJ, Article 87:
	Specification:  missed ship’s movement on 930615.
	Finding: to Charges and the specifications thereunder, guilty.
	Sentence: Forfeiture of $543.00, reduced to E-1, confinement for 15 days and restriction for 15 days.
	CA action 930827:  Sentence approved and ordered executed.

930827:	Applicant to confinement.

930908:	Applicant released from confinement.

940113:	NJP for violation of UCMJ, Article 134:  Underage Drinking
Award:  Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

940304:	NJP for Charge I, violation of UCMJ, Article 92:  Disobeyed a lawful order.
	Charge II, violation of UCMJ, Article 134:  Underage drinking.
	Award:  Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940310:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offenses as evidenced by Summary Court-Martial of 930827 and by Commanding Officer’s NJP on 940304, and misconduct due to a pattern of misconduct as evidenced by Summary Court-Martial of 930827 and by Commanding Officer’s NJP on 940118 and 940304.
	[Extracted from Commanding Officer’s message, dtd 940314.]

940310:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
	[Extracted from Commanding Officer’s message, dtd 940314.]

940314:	Commanding Officer, USS ABRAHAM LINCOLN (CVN 72), recommended to BUPERS that the Applicant be discharged under other than honorable conditions by reason of misconduct due to the commission of serious offenses as evidenced by Summary Court-Martial of 930827 and Commanding Officer’s nonjudicial punishment of 940304 and by reason of misconduct due to a pattern of misconduct as evidenced by Summary Court-Martial of 930827 and Commanding Officer’s nonjudicial punishments of 940118 and 940304.  Commanding Officer’s comments:  “AR W_ (Applicant) is an average performer, however, he has no respect for authority and is unwilling to conform to the Navy’s rules and regulations.  AR W_ (Applicant) does not possess the potential for further useful naval service and his conduct represents an extreme departure from expected standards.  I most strongly recommend that he be discharged from the naval service with an other than honorable discharge.”

940324:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

940324:	Applicant found medically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940408 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 (B and C). 

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 2 nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ and a Summary Court-Martial for violations of Articles 86 and 87.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 87 and 92 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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.

During the review of the Applicant’s records, the Board discovered that the Applicant’s administrative separation was not in full compliance with applicable regulations.  For separations based on misconduct due to a pattern of misconduct, regulations require that there be three or more punishments under the UCMJ within the current enlistment and the member must have violated a counseling warning prior to initiating processing for separation.  The evidence of record did not reveal that the Applicant was issued a proper discharge counseling warning.  However, after considering the circumstances unique to the case, the Board determined that the procedural error was not prejudicial to the Applicant, nor did it rise to the level of impropriety, and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error 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 any 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 5, effective 05 Mar 93 until 21 Jul 94), 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 V, Para 502, Propriety.

C.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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