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

 ex-ATAR, USN
Docket No. ND02-00092

Applicant’s Request

The application for discharge review, received 011009, 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 020619.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  To whom it may concern, My name is R_____ S____. I joined the Navy in January of 1991.  I enlisted as an avionics technician on the E-2C aircraft.  In this letter I am respectfully requesting that my OTH discharge be upgraded to a General or Honorable discharge.  I would like to give several reasons for this request.  I graduated one of the hardest technical schools in the with a 94.5% grade point average.  I proved to my superiors and shipmates alike that I was a very hard worker and took pride in my duties.  I am a good person and, aside from the Navy, have never been in any kind of trouble.  Unfortunately, in the Navy, I chose my friends unwisely and ended up getting into trouble.  I was very young at the time and had a drinking problem.  Of course, all my troubles stemmed from my off duty activities.  I believe that if had not gotten mixed up with the wrong crowd that I could be an E-8 or E-9 by now enjoying a fruitful military career.  I also think its very possible that if my superiors had put me into a program for alcoholism, instead of Other Than Honorably discharging me, I would still be a great asset to the Untied States Navy today.  This OTH discharge has prevented me from affording to attend certain education programs as well as being a black mark on my resume.  In addition, it has hindered my chances of ever working for the government ever again.  With the recent terrorist attacks I still feel that it's my duty to be available for service in case of emergency.  However, with my last discharge I am not eligible to be called back to duty.   Please take these points under consideration and see your way to upgrading my discharge.  Also, please review the attached documents.  They reiterate the fact that my on duty performance was not the problem.              

Documentation

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

Letter from Applicant
Character Reference Letters (2)
Copies of Enlisted Performance Evaluation Reports (3pgs)
Copies of DD Form 214 (2)
Letter for Appreciation
Service Related Documents (7pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	900529 - 910102	COG

Period of Service Under Review:

Date of Enlistment:  910103		Date of Discharge:  930430

Length of Service (years, months, days):

	Active:    02  03  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  84

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.50 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, SASMwb*, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

911022:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation, to wit: Wrongfully consuming alcoholic beverages while under the legal drinking age on or about 910928.
	Award:  Forfeiture of $196.00 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

920811:	NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA from appointed place of duty on 920718, Spec 2: UA from appointed place of duty 920719, violation of UCMJ Article 92: (2 Specifications), Spec 1: Failed to obey a lawful order on 920706, Spec 2: Failed to obey a lawful order on 920707.
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

930107:	Retention Warning from VAW-121 Unit 60136:  Advised of deficiency (Consuming alcohol under the legal age and violating a lawful verbal order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930107:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order not to consume alcohol while under the age of 21, violation of UCMJ Article 134: Violate a Virginia State code, by knowingly and unlawfully consuming alcohol while under 21 years of age.
	Award:  Forfeiture of $456.60 per month for 1 month, reduction to E-2.  No indication of appeal in the record.

930210:	NJP for violation of UCMJ, Article 86: On or about 930116, without authority absent himself from his unit to wit: VAW-121 located at NAS Norfolk, VA.
Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

930301:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
Award:  Forfeiture of $407.00 per month for 1 month, reduction to E-1.  No indication of appeal in the record.

930305:	[Carrier Airborne Early Warning Squadron 121] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense and misconduct due to a pattern of misconduct.

930309:  	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.

930322:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. 

930422:	BUPERS 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 930430 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor, whether on or off duty.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on five occasions and adverse counseling entries on another occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate. While he may feel that his youth and drinking were factors 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.

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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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