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

 ex-DCFA, USN
Docket No. ND02-00870

Applicant’s Request

The application for discharge review, received 020607, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to (left blank).  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) does not travel; all hearings are held in the Washington DC area.  The 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 030311.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  In my statement of awareness and request for/or waiver of privileges, I respectfully requested to appear before an administrative Board prior to separation, and in my statement of awareness and request for/or waiver of privileges was denied.

I would also request that the Board consider LTJG J_ J_ J_ USN Legal Officer, USS OBANNON, A/V: Recommendation of type of discharge, of Naval Service, due to my solid performance onboard the ship, and grant me general under honorable conditions.

Documentation

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

Three pages from service record
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901211		Date of Discharge:  920916

Length of Service (years, months, days):

	Active:    01  09  06
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Letter of Commendation

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901212	Applicant briefed on Navy's policy of drug and alcohol abuse.

920228:	NJP for violation of UCMJ, Article 134: Disorderly in conduct on 0130, 920221, violation of UCMJ, Article 108: Damage government property on 0130, 920212.
	Award: Correctional custody for 30 days, reduction to DCFN.  No indication of appeal in the record.

920228:	Applicant found fit for confinement.

920417:	NJP for violation of UCMJ, Article 134: Drunk and disorderly on 1600, 920412, violation of UCMJ, Article 128: Assaulted a petty officer in the face on 1600, 920412, violation of UCMJ, Article 92: Disobey lawful order.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFA.  No indication of appeal in the record.

920423:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920428:	Applicant advised of his rights and having consulted 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 and to submit a statement.
	[This documentation indicates the Applicant elected his right to an Administrative Board, crossed out and initiated entry, hand wrote request for Administrative Board and then crossed it out and initialed entry.]

920725:	Applicant arrested by North Charleston police and charged with being drunk in public.  Applicant fined $238.00.  [Extracted from Commanding Officer's letter dated 920812.]

920731:	NJP for violation of UCMJ, Article 134:  Disorderly conduct on 2306, 920725, violation of UCMJ, Article 134: Drinking under age on 920725.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

920810	Applicant acknowledged he was being processed for an administrative separation and that was diagnosed as being alcohol dependent.  The Applicant declined VA treatment on this date.

920811:	Applicant found to be alcohol abuser and referred to Level I program.

920812:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [DCFR B_’s (Applicant’s) actions can no longer be tolerated.  Although an effective worker onboard ship, his liberty performance continues to drastically decline.  He was sent to CCU in the hope that he could turn around his problems and remain a useful member of this command.  Unfortunately, his later unprovoked assault on one of his shipmates proves to me that he does not belong in the Navy.  Therefore I recommend that DFCR B_ (Applicant) be separated from the Naval Service.  However, due to his solid performance onboard the ship, I strongly recommend he be granted a general discharge.]

920914	Note hand written on discharge message this date:  LTJG J_/LTJG I_ - MBR waived right to Admin Board and verbally waived right to statement.

920916:	BUPERS 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 920916 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 states that he requested to appear before an Administrative Board, however, the documentation indicates the Applicant elected this right, then crossed it out, initialed entry, hand wrote his request and then crossed it out and initialed entry.  Additionally, the two LTJG’s are documented on the Applicant’s orders noting that he (Applicant) had waived his right to an Administrative Board as well as his right to submit a written statement.  There is no evidence of any written statement made by the Applicant in the official record.

The Board’s regulation 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 proper and equitable.  
The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The receipt of letter’s of commendation and favorable performance evaluations during the Applicant’s enlistment, do not guarantee an honorable discharge.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor.  The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct, which resulted in award of non-judicial punishment on three occasions for violations of the UCMJ.  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 following is provided for the Applicant’s information:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, 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 "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