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

 ex-SA, USN
Docket No. ND00-00792

Applicant’s Request

The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his 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.  (EQUITY ISSUE) This former member requests that the board include provision of SECNAVINST 5420.174C. enclosure (1), Chapter 9, as it pertains to post service conduct, in assessing the merits of his application.

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:   USN			None
	Inactive: USNR (DEP)	850731 - 850916	COG

Period of Service Under Review:

Date of Enlistment:  850917		Date of Discharge:  870925

Length of Service (years, months, days):

	Active:    02  00  08
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  3.20 (1)		OTA:  3.20

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:

860501:	NJP for violation of UCMJ, Article 134: Intoxicated in a duty status, violation of UCMJ Article 86: (3 Specs), Unauthorized absence.
	Award:  Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

860505:	NJP for violation of UCMJ, Article 134: Drunk and disorderly.
	Award:  Restriction for 14 days.  No indication of appeal in the record.

860619:	Retention Warning from [USS SPARTANBURG COUNTY (LST 1192)]:  Advised of deficiency (Frequent involvement with military/civilian authorities as evidenced by Commanding Officer's NJP on 860503 for violation of UCMJ, Article 134: Drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning

860828:	NJP for violation of UCMJ, Article 91: Disrespectful toward Boatswain Mate of the watch.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction for 15 days.  No indication of appeal in the record.

870528:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction for 15 days.  No indication of appeal in the record.

870805:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 112a: Drug abuse.
	Award:  Forfeiture of $383.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

870807:	USS SPARTANBURG COUNTY notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

870807:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

870810:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

870910:	Medical Officer's evaluation found applicant to be not physiologically dependent on marijuana; however, applicant is psychologically dependent on marijuana.

870919:	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 870925 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).

The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  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 did not provide any documentation of his post-service.  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.  No relief will be granted at this time.  The applicant 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 of a controlled substance, 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