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

 ex-SR, USN
Docket No. ND01-01050

Applicant’s Request

The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  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) first conducts a documentary review prior to any personal appearance hearing.  . Subsequent to the application for review, the applicant obtained American Legion as his representative.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that youth and immaturity contributed to and extenuated his misconduct of record.  On this basis, he opines that recharacterization of his service period to honorable is warranted.  

2.  (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:  USN 			None
	Inactive: USNR (DEP)	990630 - 990706	COG

Period of Service Under Review:

Date of Enlistment:  990707		Date of Discharge:  000411

Length of Service (years, months, days):

	Active:    00  09  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10			AFQT:  40

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  8

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

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

Chronological Listing of Significant Service Events:

991223:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 86 (Unauthorized absence), UCMJ, Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and UCMJ, Article 92 (Failure to obey order or regulation) as evidenced by your NJP on 991223), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

991223:	NJP for violation of UCMJ, Article 86 (5 Specs): Absence without leave; Spec 1: Did on or about 0745, 991106, without authority, absent himself from his unit: to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 1000, 991106, Spec 2: Did on or about 0650, 991209, without authority, absent himself from his unit: to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 0745, 991209; Spec 3: Did on or about 1100, 991209, without authority, absent himself from his unit: to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 1015, 991213 (4days), Spec 4: Did on or about 0650, 991217, without authority, absent himself from his unit: to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 0745, 991217, Spec 5: Did on or about 1600, 991221, without authority, absent himself from his unit: to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 1100, 991222, violation of UCMJ Article 91: Insubordinate conduct toward a petty officer, did on or about 991108, was disrespectful in language toward Builder First Class A____ S___, A U.S. Navy, a petty officer then known to be a petty officer , who was then in the execution of his barrack room, by saying to him "I don't give a fuck about this command and fuck the Navy" or words to that effect; violation of UCMJ Article 92: Failure to obey an order or regulation, did on or about 991209, violate a lawful general regulation, to wit: NASNINST 1700.17A dated 960520, by wrongfully consuming alcohol while underage.
	Award:  Forfeiture of $480.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000302:	NJP for violation of UCMJ, Article 86 (3 Specs): Unauthorized absence; Spec 1: Did on or about 2000, 000214, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Amphibious Construction Battalion ONE for the 2000 to 2400 rover watch; Spec 2: Did on or about 0650, 000218, without authority, absent himself from his unit, to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 2122, 000222 (4days); Spec 3: Did on or about 1430, 000301, without authority, absent himself from his unit, to wit: Amphibious Construction Battalion ONE, located at Naval Amphibious Base Coronado, San Diego, California, and did remain so absent until on or about 1300, 000302; violation of UCMJ Article 92: (3 Specs) Failure to obey order or regulation, Spec 1: Having knowledge of a lawful order issued by Senior Chief Hospital Corpsman S____ D. S____, to get into his CUU's because it's after 10:00 am, an order which it was his duty to obey, did on or about 1000, 000218 fail to obey the same by not changing into his CCU's and returning to work, Spec 2: Having knowledge of a lawful order issued by Boatswain's Mate First Class M____ J. G____, to turn around and come back to the quarterdeck with him, an order which it was his duty to obey, did on or about 1350, 000221, fail to obey the same by turning away from Boatswain's Mate First Class M____ J. G____ and running for the main gate on Naval Amphibious Base Coronado, San Diego, California,  Spec 3: Having knowledge of a lawful order issued by LCDR J____ M. W___, Executive Officer, Amphibious Construction Battalion ONE, to muster at 0700 on 000223 and to do Physical Training, an order which it was his duty to obey, did on or about 000223 fail to obey the same.        .
	Award:  Forfeiture of $503.00 pay per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

000314:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 000307, tested positive for [THC].

000314:	NJP for violation of UCMJ, Article 113: (Misbehavior of sentinel or lookout), on or about 000311, at Naval Air Station, North Island, while posted as a Restricted Barracks Rover from 0000-0200 was found sleeping upon his post.
Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

000320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

000320:  	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 

000326:	Arrested by the Fletcher Parkway Police while in an unauthorized absence status from restriction for not having lights on while driving his vehicle. He was also cited for expired/no insurance and not having a driver's license.

000328:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

000404:	COMPHIBGRU THREE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000411 under 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).

Issue 1.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 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 “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