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

 ex-MMFR, USN
Docket No. ND00-00300

Applicant’s Request

The application for discharge review, received 000105, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed NCDVA as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000817.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

The NDRB did note an administrative error on the original DD Form 214.  Block 28, Narrative Reason for Separation should read:  “PATTERN OF MISCONDUCT” vice “MISCONDUCT DUE TO A PATTERN OF MISCONDUCT”, Block 29, Dates of Time Lost During This Period should read: :  “TL: 12Aug97-22Aug97, 23Aug97-20Sep97” vice :  “TL:  NONE”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  On page #2 of Discharge Summary MSC(AW) A_ M_ S_ stated "I don't think he deserves an OTH...."  She was the primary witness at my AH.

2.  My discharge was unequitable because it did not reflect the judicious weighing of my 2 1/2 years of service without any other but minor infractions.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960118 - 960220	COG

Period of Service Under Review:

Date of Enlistment:  960221		Date of Discharge:  980805

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  E2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)		Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  BER 

Days of Unauthorized Absence:  40 

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

960822:	NJP for violation of UCMJ, Article 92: Fail to obey lawful order, to wit: wrongfully consuming alcohol on 2Aug96, violation of UCMJ Article 134: Disorderly conduct, drunkenness.
	Award:  Forfeiture of $400 per month for 2 months, restriction for 60 days.  One-half forfeiture suspended for 4 months.  No indication of appeal in the record.

960822:	Retention Warning: Advised of deficiency (Failure to obey other lawful written order and disorderly conduct, drunkenness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970107:	Applicant completed Level III.

970808:	Applicant to unauthorized absence 0630, 8Aug97.

970811:	Applicant from unauthorized absence 0430, 11Aug97 (2 days/surrendered).

970926:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence 0645, 12Aug97 to 0645, 22Aug97 (10 days), (2) Unauthorized absence 1630, 22Aug97 to 1700, 20Sep97 ( 28 days), (3) Unauthorized absence 0645, 25Sep97 to 1630, 25Sep97.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFA. Forfeiture of $200.00 for 2 months suspended for 6 months.  No indication of appeal in the record.

970929:	Retention Warning: Advised of deficiency (Absent from unit without authority.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980127:	NJP for violation of UCMJ, Article 92: Fail to obey a lawful general regulation on 18Dec97, to wit: wrongfully consuming alcoholic beverages while under the age of 21.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

980203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your CO's NJP of 27 January 1998 for violation of the UCMJ, Article 92, fail to obey a lawful general regulation, and your CO's NJP of 22 August 1996 for violation of the UCMJ, Article 92, failure to obey other lawful written order, misconduct due to a pattern of misconduct as evidenced by all violations of the UCMJ during your current enlistment as evidenced by your CO's NJP's of 27 January 1998, 26 September 1997, and 22 August 1996, and alcohol abuse rehabilitation failure as evidenced by your alcohol related incident as evidenced by your CO's NJP of 27 January 1998.

980203:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980409:	NJP for violation of UCMJ, Article 128: Assault consummated by battery.
	Award:  Bread and water for 3 days.  No indication of appeal in the record.

980409:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to commission of a serious offense, a pattern of misconduct, and by unanimous vote found that the evidence did not support alcohol abuse rehabilitation failure, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

980526:	Applicant offered inpatient treatment at a Department of Veterans Affairs (DVA) hospital due to service-related alcohol offenses and failure of Level III.  Applicant accepted in-patient treatment at a DVA hospital.

980630:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.  Commanding officer’s comments (verbatim): Enclosure (2) is a Letter of Deficiencies in which the counsel for the respondent feels that the board's access to the member's service record and medical record was a serious defect and should result in another hearing.  I do not share his views.  MMFR (applicant's) long list of UCMJ violations spanning a period of 20 months and failure to appropriately use alcohol are ample support for awarding him an Other than Honorable discharge.  Clearly this behavior could not be fairly described as Honorable or warrant a General under Honorable conditions.
	As to the charge that the counsel for the respondent's briefcase was opened without authorization, I requested a Command Services attorney meet DETROIT in Halifax, Nova Scotia, to assist in the investigation of the allegations. I have informed Commander, Logistics Group TWO and Commander, Submarine Group TWO of the same.  Unfortunately, Command Legal assistance will not be available until DETROIT's return to homeport.

980727:	BUPERS 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 on 980805 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).

The applicant’s first issue states:  “On page #2 of Discharge Summary MSC(AW) A_ M_ S_ stated "I don't think he deserves an OTH...."  She was the primary witness at my AH.”  The NDRB found this issue without merit.  The opinion of a witness at the administrative discharge board was taken into consideration by the administrative discharge board.  The administrative board recommended the applicant be separated for his misconduct, the Commanding Officer recommended the applicant’s discharge with an OTH and BUPERS directed the discharge.   

The applicant’s second issue states:  “My discharge was unequitable because it did not reflect the judicious weighing of my 2 1/2 years of service without any other but minor infractions.”  The NDRB found this issue without merit.  The negative aspects of the applicant’s service outweighed his otherwise creditable service.  Relief is not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  The applicant must be aware that 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, an error or injustice must have been found to have existed 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023