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

ex-ATAR, USN
Docket No. ND01-00338

Applicant’s Request

The application for discharge review, received 010129, 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 listed Dallas County Veteran Service as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010710.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Please give full consideration in upgrading my discharge to general under honorable conditions, because I have matured more, I am attending the police academy and married.

Documentation

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

Character reference dated November 9, 2000
Letter of recommendation, undated (2 copies)
Letter from applicant, undated (2 copies)
Character reference dated March 29, 2001
Character reference, undated
Character reference dated March 26, 2001
Character reference dated March 27, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960601 - 960717	COG

Period of Service Under Review:

Date of Enlistment:  960718		Date of Discharge:  980608

Length of Service (years, months, days):

	Active:    01  10  21
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  ATAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks found.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

970429:	NJP for violation of UCMJ, Article 92  (3 specs): (1) Violate a lawful general order by wrongfully contributing alcohol beverages to persons under the age of 21 on 19Apr97, (2) Violated a lawful general order by wrongfully possessing an open container of alcohol on 19Apr97, (3) Failed to obey a lawful order issued by Cdr by wrongfully consuming alcohol while in a duty status on 19Apr97.
	Award:  Forfeiture of $100 per month for 1 month, restriction for 14 days, extra duty for 7 days, reduction to ATAR.  Reduction suspended for 3 months.  No indication of appeal in the record.

970626:	NJP for violation of UCMJ, Article 111: Operate a vehicle while drunk on 13Jun97.
	Award: Forfeiture of $235.69 per month for 1 month, restriction and extra duty for 14 days, reduction to ATAR.  Reduction suspended for 4 months.  No indication of appeal in the record.

980305:	NJP for violation of UCMJ, Article 86: Leave place of duty, violation of UCMJ Article 92: Failure to obey other lawful order, violation of UCMJ, Article 134: Disorderly conduct, to wit: drunkenness.
	Award: Not on court memorandum.  No indication of appeal in the record.  Court memorandum list 112 as one of the UCMJ Articles 

980608:	DD Form 124: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

Discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980608 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).

Issue 1.  The applicant states, he has matured, is attending the police academy and is married.  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 sufficient documentation to warrant an upgrade to his discharge.  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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (Failure to obey a lawful order), and 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 "afls10.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