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

 ex-RMSN, USN
Docket No. ND00-00812

Applicant’s Request

The application for discharge review, received 000613, requested that the characterization of service on the discharge be changed to honorable or 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 010125.  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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was discharged with an under other than honorable conditions due to the issue I was lied upon, and framed.  My CO Capt J_ J_ D did not want to hear the facts coming from my LCPO whom was involved with incident when it arose.  I have faithfully served one tour with an Honorable discharge in my service records and I'm requesting my second discharge be upgrade or changed to an General Under Honorable Conditions, or an Honorable Discharge.  I would like to thank you for your time and complete consideration.  Thank you very much

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		910923 - 950924	HON
	Inactive: USNR (DEP)	910717 - 910922	COG

Period of Service Under Review:

Date of Enlistment:  950925		Date of Discharge:  980615

Length of Service (years, months, days):

	Active:    02  07  21
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  40

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None

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:

960621:	Civil Conviction: violation of under the influence of alcohol and driving with a BAC of .08%.
	Final disposition 19Nov96.
Sentence:  Three years probation and fined $930.00.  [Extracted from CO's letter dated 980511.]
 
960926:	NJP for violation of UCMJ, Article 111: Operate a vehicle, to wit: a passenger car, while drunk on 21Jun96.
	Award: Forfeiture of $651 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN.  No indication of appeal in the record.

960926:	Retention Warning:  Advised of deficiency (Drunken driving at or near San Diego, California, on 21 June 1996 on Sweetwater Road.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
970813:	NJP for violation of UCMJ, Article 134 (2 specs): (1) Disorderly conduct on or about 7Aug97, (2) communicating a threat on 7Aug97.
	No indication of appeal in the record.

980330:	NJP for violation of UCMJ, Article 92: Disrespect language towards RM2 on 18Mar98.
	Award: Forfeiture of $615 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN.  No indication of appeal in the record.

980505:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense ad civilian conviction.

980505:  	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 

980511:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and civilian conviction.

980521:	Commander, Submarine Force, U.S. Pacific Fleet 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 980615 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 issue states:  “I was discharged with an under other than honorable conditions due to the issue I was lied upon, and framed.  My CO Capt J_ J_ D did not want to hear the facts coming from my LCPO whom was involved with incident when it arose.  I have faithfully served one tour with an Honorable discharge in my service records and I'm requesting my second discharge be upgrade or changed to an General Under Honorable Conditions, or an Honorable Discharge.  I would like to thank you for your time and complete consideration.  Thank you very much.”  The NDRB reviewed the applicant’s service record and found three NJP’s and one civil conviction in his latest enlistment.  His misconduct continued despite counseling and warning.  The NDRB found the applicant’s discharge of Other Than Honorable accurately characterizes the applicant’s last enlistment.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 failed to provide the NDRB with any post service documentation for consideration.

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