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

 ex-ETCS, USN
Docket No. ND01-00701

Applicant’s Request

The application for discharge review, received 010424, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant 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 011127.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Clemency is warranted because the applicant is suffering adverse consequences of his other than honorable discharge.

2.  We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

Documentation

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

Letter from applicant to the Veterans of Foreign Wars
Copy of DD Form 214
Twenty-seven pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN			780208 - 831211	HON
		    USN		831212 - 871126	HON
		    USN		871127 - 911125	HON
	Inactive: USNR (DEP)	780207		COG

Period of Service Under Review:

Date of Enlistment:  911126		Date of Discharge:  971125

Length of Service (years, months, days):

	Active:    06  00  00
	Inactive:  None

Age at Entry:  37			Years Contracted:  6

Education Level:  12			AFQT:  69

Highest Rate:  ETCS

Final Enlisted Performance Evaluation Averages: Enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (4), NDSM (2), MUC, HSM (2), KPUC, GCM (5), OSR (7), NAM (2)

Days of Unauthorized Absence:  7

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

971027:	NJP for violation of UCMJ, Article 92: Dereliction of the performance of duties in that he willfully failed to perform MWR duties that were assigned to him on 23Sep97 to 9Oct97.
	Award: Forfeiture of $1288 per month for 2 months, extra duty for 60 days.  Appeal 971031.  Appeal denied 971112.

971105:	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 allegations of manslaughter and DUI pending in the civilian community.

971105:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971109:	Applicant arrested by Guam Police Department for driving while intoxicated and vehicular manslaughter.

971113:	An Administrative Discharge Board, based upon a preponderance of the evidence and a unanimous vote, found that the applicant had committed a serious offense, and by a vote of 2 to 1 that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

971116:	Applicant released on $25,000 bail.

971121:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

971125:	CNO 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 971125 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).

Issues 1 and 2.  The NDRB has no authority to upgrade a discharge for the sole purpose of relieving adverse consequences as requested in the issue.  The NDRB’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  An Administrative Discharge Board, based upon a preponderance of the evidence and a unanimous vote, found that the applicant had committed a serious offense, and by a vote of 2 to 1 that the misconduct warranted separation, and recommended discharge under other than honorable conditions.  A discharge under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by his award of nonjudicial punishment for commission of a serious offense.  The applicant’s conduct falls short of that required for an honorable characterization of service.  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 relief, 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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 "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