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

ex-MSSR, USN
Docket No. ND00-00963

Applicant’s Request

The application for discharge review, received 000821, requested that the characterization of service on the discharge be changed to honorable.  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 010201.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I wish to have the events surrounding my discharge reviewed, and my discharge status upgraded to "Honorable" for the following reason.  At the time of my discharge, I was in the process of trying to save my marriage.  My marital difficulties were in large part caused by my being in the military, and, the only recourse I could see was to get out of the Navy.  Although at the time I enjoyed much of my Navy life, my marriage was more important to me. With the need to get out being paramount in my mind, and looking for an easy way out, I did some foolish and immature things, which ultimately led to my discharge.  In looking back on those times, I feel now that the Navy might also have taken the easy way out.  Despite the warning signs raised by my attitude and behavior at work, my superiors never seemed to take any interest in me as an individual, or about what might be causing my work performance to deteriorate.  During the time immediately preceding my discharge, I was never approached by the Navy with any offer of advice, assistance or counseling.  No one in a position of authority or anyone who was capable of offering assistance inquired about what was happening in my life, or took any interest in my situation, with a thought to helping me resolve my problems.  Upon being arrested, I was not questioned about why I did the things I did. Now, discussions with friends and associates who are also ex-military personnel have made realize that there was a wealth of counseling and psychological services available which I was unaware of at the time.  I believe that with counseling for myself and perhaps my wife, we might have been able to save my marriage.  Certainly, I would not have embarked on the course of actions which resulted in my receiving the type of discharge I did.  I believe that the Navy was remiss in this regard.

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			900801 - 940728	HON
	Inactive: USNR (DEP)	891016 - 900731	COG

Period of Service Under Review:

Date of Enlistment:  940729		Date of Discharge:  950629

Length of Service (years, months, days):

	Active:    00  11  01
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  28

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (1), SASM, JMU

Days of Unauthorized Absence:  28 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950412:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 0645, 25Feb95 until 1800, 24Mar95 (28 days/surrendered).
	Charge II: violation of the UCMJ, Article 111:
	Specification: Operate a vehicle while drunk, in a reckless manner.
	Charge III: violation of the UMCJ, Article 134:
	Specification: Overindulgence in intoxicating liquor, incapacitated for the proper performance of his duties.
	Finding: to Charge I, II and III and the specifications hereunder, guilty.
	Sentence:  Forfeiture of $569.00, hard labor without confinement for 45 days, restriction for 45 days, reduced to MSSR.
	CA action 950421:  Sentence approved and ordered executed.

950424:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950424:  	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.

950426:	CAAC evaluation:  Applicant found not to be alcohol dependent or an alcohol abuser.

950428:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

950609:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950629 under other than honorable conditions for misconduct due to commission of a serious offense (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 the applicant’s issue 1, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command.  In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The applicant states that the Navy “might have taken the easy way out” by discharging him.  The Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  The Board will not grant relief on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  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 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, drunken driving 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