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

 ex-ATAR, USN
Docket No. ND02-00623

Applicant’s Request

The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of government.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to St. Louis, MO.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned neither impropriety nor inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 –142.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Whether R_ K_ received due process.  This issue goes to both the propriety of the discharge as well as to the equity of the discharge (See 32 CFR 724.902 and 724.903).

2.  What were Mr K_'s capability to serve to include both his total capabilities and personal problems?  This is an equitable issue (See 32 CFR 724.903(2)(i) and (ii)).

3.  What was the quality of Mr K_'s service to include his post service conduct (See 32 CFR 724.903(C)(1))? 

Documentation

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

Letter from E_ & W_, Attorney at Law
Brief in Support of Application for Review of Discharge (6 pages)
Character Reference Letter from E_ J. S_ 
Character Reference Letter from P_ G. W_ III
Character Reference Letter from C_ L. H_ 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 			None
	Inactive: USNR (DEP)	970416 - 970513	COG

Period of Service Under Review:

Date of Enlistment:  970514		Date of Discharge:  000414

Length of Service (years, months, days):

	Active:    02  11  01 (not excluding lost time)
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  8 			AFQT:  76

Highest Rate:  ATAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.66 (3)	Behavior:  1.33 (3)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Shot Marksman, SSDR

Days of Unauthorized Absence:  (1) 980914-980915

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:

980715:	Recommendation for advancement to ATAN and retention withdrawn due to substandard performance (1.0 for Quality of Work, Military Bearing/Character, and Personal Job Accomplishment/Initiative).

981006:	Page 13 entry: Unauthorized Absence from 0700 on 980914 until 0700 on 980915.

981007:	Recommendation for advancement to ATAN and retention withdrawn due to substandard performance (1.0 for Quality of Work, Military Bearing/Character, and Personal Job Accomplishment/Initiative).

990417:	Not recommended for retention on transfer evaluation report; Block 43 COMMENT ON PERFORMANCE states that Applicant "Received numerous counselings for late to shop muster, late from liberty and disrespect."

990727:	Successful completion of Drug & Alcohol Abuse Rehabilitation Program (1 week, NAS WHIDBY ISLAND WA).

000301:	Retention Warning:  Advised of deficiency (Violation of the UCMJ Article 86, unauthorized absence/failure to go at the time prescribed to appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000301:	NJP for violation of UCMJ, Article 86: (2 Specifications), Specification 1: On or about 0700, 000117 did, without authority, fail to go to his appointed place of duty at NAS WHIDBEY ISLAND, WA; Specification 2: On or about 0700, 000118 did, without authority, fail to go to his place of duty at NAS WHIDBEY ISLAND WA.  Additional Charge: On or about 0700, 000228 did, without authority, fail to go to his place of duty at NAS WHIDBEY ISLAND WA.
	Award:  Forfeiture of $465.15 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

000410:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

000410:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000413:	Commanding Officer recommended 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 0000414 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 contends he did not receive due process thus his discharge was neither proper nor equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is not evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  Applicant's available records are not complete and by regulation the NDRB is required to presume regularity in the conduct of governmental affairs.  Though the evidence available in the partial records appears minor, the NDRB must presume there were additional periods of misconduct to warrant the discharge.  The Applicant acknowledged and waived his right to administrative review.  The Applicant was afforded the appropriate due process at every opportunity, thus due process was honored.  The NDRB found the Applicant's service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant's discharge to an honorable characterization.  Relief denied.

Issue 2.  The Applicant contends the Navy was aware he had an alcohol problem and thus should have never been allowed to enlist.  There is no evidence to substantiate that claim.  The record reflects a properly executed enlistment.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  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 action.  Relief on this basis is denied.

Issue 3.  The Applicant contends his post-service quality of service should be taken into consideration.  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, and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration based on post-service conduct.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The applicant is reminded he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.   Representation at a personal hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION 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 "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