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

ex-AR, USN
Docket No. ND00-01029

Applicant’s Request

The application for discharge review, received 000911, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the board in the Washington National Capital Region and a documentary record discharge review.  The applicant listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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: OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  First I want to apologize for any problems I might have caused the navy department -1st I want to include my letter my letter of commendation 2nd proof that the navy recruiter lied to me and didn't give me a skilled trade school as promised me in front of my father after boot-camp and this admitted in letter by congressman M____ in a dated May 2, 1996 and my father had cancer removed at VA dated letter of 9-13-96 and needed my help home while my brothers were away >www.ipna.com/military and finally please upgrade my discharge to honorable as promised by LCDR (Law Boss) G_____ and Petty Officer C______ (MAA) and Petty Officer W_____ (MAA) Chief C____ (MAA) and mostly T____ S____ N.C.I.S Agent (Navy Intelligence) all of whom stated if I give the names of all my shipmates I knew who were doing drugs or selling drugs on Ship I did cooperate and they said if not honorable discharge at least I would get general/under honorable conditions all of them lied to me because they did not keep their word and this was given to me in front of Nimitz commander R______ and the chaplain.  I myself didn't do drugs I was a drinker of beers, but I knew a lot of the crew that did and after my best friend was killed on board the Nimitz while we were working on top deck.  I started drinking heavy and missing work so I was busted out of the navy.  The results of my cooperation resulted in the biggest drug bust on Nimitz ever.  But it put me and my family in danger because they knew were I lived >www.inpa.com/military.

2.  (VFW ISSUE) The applicant enlisted in the United States Navy on October 13, 1996.  He received a telephone call waiver to qualify for enlistment.  In June of 1995 he received an entry to his service record book.  It stated the applicant was to be retained in the Naval Service despite his defective enlistment and induction due to fraudulent entry into the naval service.  Was he offered any type of counseling to overcome his shortcoming?  We contend an upgrade discharge is in order under the rule of Equity.  We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for General Discharge Under Honorable Conditions.

Documentation

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

Additional Evidence Letter from VFW
Letter from Applicant (4pgs)
Letters from Congressman J___ M. M____ (2)
Page from Clinical Record
Copy of DD Form 214
Copies of Letters of Commendation (3)
Letter from HQMC Division of Public Affairs
Congressional Response Letter from Capt E___, Director of NCPB
Copies of High School Diploma (2)
Copies of The Scranton Times Newspaper Articles (2)
Letter from Applicant's Father
Letters from Congressman D____ S____ (2)
Copy of Discharge Review Board Information
Copy of Social Security Card and Birth Certificate
Copies of World Tang Soo Do Association Certificate (2) 
Service Related Documents (17pgs)
Letter from Office of Personnel Management
Letter from Department of Veteran Affairs
Letter from Congressman J___ M. M____
Copies of Honorably Crew Member Certificate (2)
Copy of Daily Variety Newspaper Article
Copies of J___ B____, Editor, Newspaper Articles 
Copy of Bronze Leader Certificate from DVA for J___ P. B____
Copy of Tourguide Guide to Safety Letter
Service Related Documents (39pgs)
Copy of Credit Union Bank Statement
Copies of Nexcard Credit Statement (2)
Copy of Payment Receipt from Allstate Insurance Company
Newspaper Article
Letter from Applicant's Father
Newspaper Article 
Service Related Documents (5pgs)
Copies of Previously Listed Documents (60pgs)

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			None
	Inactive: USNR (DEP)	961016 - 961112	COG

Period of Service Under Review:

Date of Enlistment:  961113		Date of Discharge:  990326

Length of Service (years, months, days):

	Active:  02  02  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC, AFEM, SSDR

Days of Unauthorized Absence:  54 

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

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

Chronological Listing of Significant Service Events:

970806:	Retention Warning:  Despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil arrests, specifically for underage purchase, consumption, transportation/possession of intoxicating beverages (May 93), and assault and battery (Jun 95).

971024:	NJP for violation of UCMJ, Article 86: (2 Specifications), Absent from unit from 970811 to 970813 [2days/S], and failure to go to his appointed place of duty on 970918, violation of UCMJ Article 92: Failure to obey lawful order on 970926.
	Award:  Forfeiture of $505.00 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

971024:	Retention Warning:  Advised of deficiency (Violating article 86 and 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980723:	NJP for violation of UCMJ, Article 86: Leaving place of duty on 980518 and failure to go to his appointed place of duty on 980629.
	Award:  Restriction and extra duty for 30 days, reduction to E-1 (suspended for 3 months).  No indication of appeal in the record.

981202:	SCM for violation of UCMJ, Article 86: (2 Specifications), Absent from unit from 980917 until 981006 [20 days/A], and from 981013 until 981027 [15days/A], violation of UCMJ Article 92: (2 Specifications), Failure to obey lawful order on 980804 and 980815.
	Sentenced to Hard Labor without confinement for 20 days, restriction for 20 days, reduction to E-1.
	CA (981203) Approved findings and sentence. 

990203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by your non-judicial punishments on 971024 and Summary Court Martial on 981202, and misconduct due to a pattern of misconduct as evidenced by your two or more punishments in violation of a page 13 warning.

990203:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990210:	Applicant waived Administrative Discharge Board [Extracted from Letter of Notification].

990211:	NJP for violation of UCMJ, Article 86: (2 Specifications), Absent from unit from 990120 until 990127 [7days/S], and from 990203 until 990210 [7days/S].
	Award:  Restriction and extra duty for 20 days.  No indication of appeal in the record.

990304:	Commanding officer recommended discharge other than honorable conditions by reason of misconduct due to commission of serious offense and pattern of misconduct.  

990310:	COMNAVAIRLANT NORFOLK VA directed the applicant's discharge other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990318:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana, on or about February 1999 and March 1999.
	Award:  Confinement on B&W for 3 days, forfeiture of $479.00 per month for 2 months.  No indication of appeal in the record.

990322:	UA from 990322-990325 [3days/S].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990326 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).

In the applicant’s issue 1, the Board found that the applicant had 4 NJPs and a Summary Court martial during his 2 years and 2 months in the Navy.  The applicant had a variety of offenses, including unauthorized absences, failing to obey orders, leaving place of duty and wrongful use of marijuana.  Although the applicant states in issue 1 that he “didn’t do drugs,” he was found guilty at CO’s NJP of wrongful use of marijuana.  The applicant also states that he was supposed to receive a honorable or general discharge for his assistance in a drug bust.  The applicant presents no evidence, nor did the Board find any evidence to show that this was an understanding or promise made to him.  Additionally, the applicant raises the issue of his defective enlistment and induction due to fraudulent entry into the naval service for failure to disclose pre-service arrests.  Although it was proven that the applicant did not self admit to his pre-service arrests, the Board found this had no bearing on the applicant’s discharge characterization  2 years later.  No relief will be granted based on this issue. 

In the applicant’s issue 2, the applicant was retained in the Navy despite his “defective enlistment and induction due to fraudulent entry into the naval service.”  He then raises the question of “counseling to overcome his shortcoming.”  The Board finds that the applicant was given a retention warning in 1996, which in itself is a counseling and a warning that further misconduct could result in separation from the naval service.  The applicant then went on to commit many violations of the UCMJ, during his 2 years in the Navy, despite numerous warnings and counselings.  The applicant’s service is accurately characterized as having been served under other than honorable conditions.  Relief is denied. 

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 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