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

 ex-FA, USN
Docket No. ND00-00791

Applicant’s Request

The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111.  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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I D_____ M. E_____ was discriminated against.  Fact being there were no investigations done to prove my misconduct charges.  Also my chief petty officer and first class petty officer did not confurm the acceratcy of these charges.  In fact this decision was made solely by the captain himself.  I feel that my department superiors should have been allowed to speek on my behalf.  My work ethics were outstanding always on time.  Determined attitude and willingness to learn.  Participated in all trouble shooting and repair work orders.  Displayed leadership qualities.  Gave dath input for diagnostic and feed back request.  The commanding officer felt he was able to pass judgement on any & everyone on the command without consulting with departmental supervisors and other chiefs, and officers of my department.  I wanted to finish my service time with honors unfortunately I was powerless and so was my immediate supervisor powerless in making that decision.  Respectfully request for reconsideration of discharge status.  Captain overruled suggestion of supervision. 

Documentation

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

Employment Reference Letter (2)
Thank You Letter to Applicant
Letter from American Legion
VA Claimant
Copy of Medical Documents (2pgs)
Copy of DD Form 214
Copy of Military Record Request
Copy of Life Insurance Policy
Copy of Allotment Authorization

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	841031 - 851010	COG

Period of Service Under Review:

Date of Enlistment:  851011		Date of Discharge:  871109

Length of Service (years, months, days):

	Active:    02  00  29
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.65 (4)	Behavior:  2.35 (4)		OTA:  2.65

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  None 

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:

860617:	NJP for violation of UCMJ, Article 86: (2 Specs), Absent from an appointed place of duty, violation of UCMJ Article 92: (2 Specs), Failure to obey a lawful order.
	Award:  Restriction to the limits of the ship for 30 days, extra duty for 14 days.  No indication of appeal in the record.

860617:	Retention Warning from [USS GARY (FFG-51)]:  Advised of deficiency (Inability to follow orders and regulations and unauthorized absence from place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870205:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Restriction to the limits of the ship for 13 days, reduction to E-2 (suspended for 4 months).  No indication of appeal in the record.

871002:	NJP for violation of UCMJ, Article 112a: Wrongful use and possession of a controlled substance, to wit: cocaine (2 specs).
	Award:  Forfeiture of $369.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

871007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct as evidenced by three punishments under the UCMJ within the current enlistment 

871009:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

871014:	DAAR found applicant not dependent, not eligible, recommended separation not via VA hospital.

871020:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of misconduct due to a pattern of misconduct.

871102:	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 on 871109 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to the applicant’s issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant provided two letters of recommendation from his employer as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112a, for wrongful use and possession of a controlled substance, to wit: cocaine, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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