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

ex-MMFN, USN
Docket No. ND00-01048

Applicant’s Request

The application for discharge review, received 000913, requested that the characterization of service on the discharge be changed to 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  The sweater in great lakes was loaned to me by a shipmate that went AWOL.  He was AWOL how could I give the sweater back?  this was not petty larceny.  The second charge asleep on watch.  I went to sick call that day, was given given medication.  I was sitting down and my eye's were closed, but I was not asleep.  We were putting in a lot of 18 hour days.  My evals were lowered from 3.6 to 2.0 after I failed the UA in Thialand not before.  I could easily fall into catagory (3) of the First Section in the attached section from my service records.  I am also enclosing some statements on how my supervisor's went to bat for me at my review to stay in the navy.

Documentation

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

Three pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880616 - 880706	COG

Period of Service Under Review:

Date of Enlistment:  880707		Date of Discharge:  910408

Length of Service (years, months, days):

	Active:    02  09  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  13			AFQT:  63

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (3)	Behavior:  3.10 (3)		OTA:  3.07

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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:

880708:	Applicant briefed on Navy's policy on drug and alcohol abuse.

881219:	NJP for violation of UCMJ, Article 121: Theft of another's personal effects.
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to MMFR.  No indication of appeal in the record.

881219:	Retention Warning:  Advised of deficiency (Poor military performance - theft of personal affects from another service member.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
900913:	NJP for violation of UCMJ, Article 113: Sleeping on watch on 3Sep90, while being posted as evaporator watch in #1 MMR.
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 21 days, reduction to MMFN.  Reduction suspended for 6 months.  No indication of appeal in the record.

900913:	Retention Warning:  Advised of deficiency (Two commanding officer's nonjudicial punishments within current enlistment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910121:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 22Dec90.
	Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 30 days, reduction to MMFN.  No indication of appeal in the record.

910125:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Unit sweep urinalysis on 22Dec90.  DAPA and physician found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital

910124:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse, misconduct due to a Pattern of misconduct, and misconduct due to the Commission of a serious offense.

910212:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910214:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed drug abuse, a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

910219:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse, misconduct due to a Pattern of misconduct, and misconduct due to the Commission of a serious offense.

910329:	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 910408 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).

Issue 1.  The applicant alleges his three NJP convictions, which resulted in his separation from the Naval service, were unjustified.  The applicant provided three pages from his military service record but provided no documentary proof to support his allegations or demonstrate that the NJP convictions were in error.  The Board determined this issue is without merit.  Relief denied.  

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 112a (Wrongful use, possession, etc. of controlled substances), Article 113 (Misbehavior of a sentinel or lookout), and Article 121 (larceny), 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