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

FOR OFFICIAL USE ONLY

ex-AKAN, USN
Docket No. ND06-00767

Applicant’s Request

The application for discharge review was received on 20060517.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070308.  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 General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read: “02 11 27”; Block 25, Separation Authority, should read:  “MILPERSMAN 1910-140”; Block 26, Separation Code, should read:  “JKA”; Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT PATTERN OF MISCONDUCT”; Block 29, Dates of Time Lost During This Period, should read:  “02MAY04 To 02MAY17”.  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issue:

Equity – Maturity

Equity – Quality of service

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Service 7)
Applicant’s DD Form 214 (Service 2) (2)
Excerpts from Service Record (15 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19980930 - 19981027	ELS
	Inactive:  USNR (DEP)	19990510 - 19990601	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990602		Date of Discharge:  20020528

Length of Service (years, months, days):

	Active:    02  11  27  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  14 days
	Confinement:		  None

Age at Entry:  32

Years Contracted:  4 

Education Level:  11				AFQT:  66

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  1.0 (1) 			OTA:  2.57 

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

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: 

990310:	Enlistment waiver granted for DEP discharge.

000721:	Applicant found guilty of DUI in civilian court.  Applicant was referred to Virginia Alcohol Substance Abuse Program and Level II. [Extracted from CO’s letter 020627].

001004:	Retention Warning:  Advised of deficiency (A pattern of alcohol abuse and misconduct resulting in division counseling form documentation of unauthorized absence and one incident of “Unfit for Duty”.  On 000912, conviction of a 1^st degree misdemeanor (DUI) in the City of Virginia Beach, VA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001217:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 0800-1119, 001108.
Award:  Forfeiture of $585.75 pay per month for 1 month, restriction for 5 days, reduction to E-2 (suspended for 3 months).  No indication of appeal in the record.

001217:	Retention Warning:  Advised of deficiency (Found guilty via civilian court for DUI; Violation of the UCMJ Article 86-Absence from unit, organization or place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020330:	Applicant arrested for DUI, awaiting court hearing [Extracted from CO’s letter 020627].  

020504:	Applicant arrested for DUI, IHCA. [Extracted from CO’s letter 020627].  

020517:	Applicant released from custody (IHCA), returned to military control this date.

020520:	NJP for violation of UCMJ, Article 86: Absent from unit, organization, or place of duty from 0800 020504 to 020517 (due to in the custody of civilian authority).
Award:  Restriction for 60 days.  No indication of appeal in the record.

020520:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct.

020528:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

020627:	Commander, Carrier Air Wing THREE directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020528 by reason of misconduct due to a pattern of misconduct (A ) with a service characterization of general (under 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).  

Equity – Maturity: The Applicant contends that he found it hard to adjust to the Navy.

While he may feel that his maturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  Relief denied.

Equity – Quality of service:  The Applicant states that his work was good while in service.

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 warnings and 2  nonjudicial punishment proceedings for violations of Articles 86 (UA) of the UCMJ.  In addition, the Applicant was arrested for DUI on three occasions during this period of enlistment.  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.

Equity – Post service:  The Applicant states that he has corrected the problems that he was discharged for.

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 alcohol rehabilitation/sobriety and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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