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

ex-AR, USN
Docket No. ND00-01037

Applicant’s Request

The application for discharge review, received 000912, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of Government.  The applicant requested a personal appearance hearing before a traveling panel closest to Lexington, KY.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  For the last three years, I have been employed with the Lexington Fayette County Government as a sworn law enforcement officer in the Division of Detention.  I am a member of the Special Response Team and have been a Field Training Officer, training 15 classes of new hires.  I have received commendations and awards from my superiors.  I have consistently maintained above-average or outstanding performance evaluations.  Since my discharge, I have matured greatly, and realize the impact on my life of the mistakes I made as a young man.

Before being given this opportunity with the city government, I worked hard to provide a decent life for my wife and I, mostly at low wage jobs, unable to afford to further my education, and unable to find a good job due to the nature of my discharge.  I have a strong desire and drive to succeed in my chosen profession, but I am roadblocked by the stigma of my discharge.  I cannot apply for any Police or Fire positions due to this.  I am requesting this upgrade to assist me in furthering my career goals and bettering my life.  I realize that my record of service in the final year of my enlistment was less than admirable, but in my first year I advanced rapidly and had 3.8 performance evaluations.

I understand now, 12 years later, that I was an impressionable, immature, young man who was not ready for the responsibility placed upon me.  In my current position as a Detention Corporal, I am responsible for a $62 million dollar correctional facility, the care, custody, and control of 600+ adult offenders, and the safety and welfare of 30 fellow officers.  I believe that 12 years is long enough for me to carry this burden, and would be grateful for the opportunities that an upgrade would open for me.  I have a desire to continue to serve my community, and my country further by serving in a law enforcement unit in the National Guard now that I have matured and become more responsible, and feel an upgrade would allow this.

Thank you for your time and consideration, and hopefully this chance.

Documentation

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

	Character reference dated August 29, 2000
	Copy of memorandum dated January 27, 1999
	Copy of coaching and counseling plan dated September 2, 1997
	Copy of performance appraisal dated October 12, 1997
	Copy of memorandum dated March 25, 1998
	Copy of memorandum dated April 29, 1998
	Copy of certificate of achievement for academic achiever dated July 18, 1997
	Copy of certificate of achievement for best officer dated July 18, 1997
	Copy of certificate of completion dated July 18, 1997
	Copy of certificate of completion dated August 18, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   USNR		860325 - 860528	To enlist USN
	Inactive: USNR		860320 - 860324	To ACDU

Period of Service Under Review:

Date of Enlistment:  860529		Date of Discharge:  880502

Length of Service (years, months, days):

	Active:    01  11  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  78

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  3.30 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  61

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

870213:	NJP for violation of UCMJ, Article 112A: Possessed and use marijuana on 9Feb87.
	Award: Forfeiture of $369 per month for 2 months, restriction for 60 days, reduction to AA.  No indication of appeal in the record.

870213:	Retention Warning:  Advised of deficiency (Possession and use of marijuana on 9Feb87.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870324:	Drug and Alcohol Abuse Report: Marijuana possession, less than monthly February 1987, ashore off duty.  SAC found applicant not dependent and recommended Level I treatment.  Law enforcement February 1987.  Commanding Officer recommended retention and refer to NASAP/NDSAP, Level I treatment.  Comments: (1) EAOS (2) None (3) 10 MOS (4) ADAN (5) May92 (6) None (7) GMT, INDOC (8) Possession.  NJP 13Feb87 Art 112A received 60 days restriction, FOP 1/2 x 2, RIR.

870622:	Civil Conviction: [Duval County Court, Jacksonville, FL] for violation of driving under influence with a BAC of .111% on 6Jun87.
Sentence:  Jail for 2 days (time served), probation for 6 months, revocation of driver's license for 6 months, community service for 50 hour, attendance of DWI school and fined $467.50.

870623:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0730, 20May87 and 1648, 21May87 (1 day/surrendered), violation of UCMJ Article 87: Missed movement, through neglect, on 20May87.
	Award: Forfeiture of $369 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

870623:	Retention Warning:  Advised of deficiency (Unauthorized absence and missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870624:	Retention Warning:  Advised of deficiency (DWI on 6Jun87.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870928:	Applicant declared a deserter.

880107:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0700, 27Sep87 – 2027, 26Nov87 (60 days/surrendered).
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed ship's movement.
Findings: to Charge I and II and specification thereunder, guilty.
	Sentence: Confinement for 2 months, forfeiture of $400 per month for 2 months, reduction to AR.
	CA 880317:  Sentence approved and ordered executed.

880226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by civil conviction.

880226:  	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.

880407:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

880414:	CNMPC 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 880502 under other than honorable conditions for misconduct due to commission of a serious offense (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 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 Board found the applicant committed significant misconduct while on active duty that included:  2 NJP’s, one civil conviction and 1 Special Court Martial.  The board did not find the applicant’s post service sufficient to warrant a change in the discharge.  Relief is denied.

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 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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