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

 ex-FA, USNR
Docket No. ND02-01053

Applicant’s Request

The application for discharge review, received 020718, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion 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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Propriety Issue) This former member avers that he was not afforded all of his due process rights before he was discharged.  Specifically, he was deprived of his rights to confer with counsel and to an Administrative Discharge Board.  On this basis, he opines that recharacterization of his service period to General (Under Honorable Conditions) is warranted.

2.  (Equity Issue) This former member further requests that the Board include provisions 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:

Applicant' s DD Form 214
Fifty-one pages from Applicant's service record

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:  930730		Date of Discharge:  941215

Length of Service (years, months, days):

	Active:    01  03  29
	Inactive:  00  00  16

Age at Entry:  26			Years Contracted:  8

Education Level:  12			AFQT:  51

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (1)	Behavior:  2.60 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NER, NDSM

Days of Unauthorized Absence:  4

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930817:	Applicant to active duty.

940117:	Applicant to unauthorized absence 0700, 940117.

940119:	Applicant from unauthorized absence 0700, 940119 (2 days/surrendered).

940430:	Applicant reported onboard USS BAINBRIDGE at 1957 940430.

940506:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 940416 to 0800, 940418 (2 days/surrendered), violation of UCMJ, Article 87: Missing vessels movement on 0830, 940416, violation of UCMJ, Article 92: Failure to obey a order or regulation on 940427, to wit: to meet Executive Officer at 0800, 940427 to catch a flight to US BAINBRIDGE.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940506:	Retention Warning: Advised of deficiency (Unauthorized absence, missing vessel's movement, failure to obey a lawful order or regulation and alcohol related incident.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940714:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absence without leave on 2145, 940703 to 0300, 940704, (2) Absence without leave on 1530-1830, 940704, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer on 2100, 940703, to wit: to be escorted by BM2, violation of UCMJ, Article 92: Failure to obey order or regulation on 940703, to wit: to sign out in the liberty log.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

940716:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the punishment under the UCMJ in your current enlistment.

940718:	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 make a statement.

940730:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [Since enlisting, FR W_ (Applicant) has been a burden to the Navy.  He has demonstrated a total disregard for the Navy’s rules and regulations and to senior and junior service members alike.  This has been evidenced by his two nonjudicial punishment in his current enlistment.  Based on his unwillingness to conform and abide to Navy rules and regulations, and his immediate chain-of-command, this command has indulged FR W_ (Applicant) the utmost concern and diligence to correct his personal and military behavior, and conduct.  Through many individual administrative counseling and warnings, FR W_ (Applicant) refuses to site the recommendations and deficiencies of his unbecoming behavior, for which subsequently FR W_ (Applicant) has no immediate intentions of complying.  I strongly recommend that you separate FR W_ (Applicant) from the naval service with an other than honorable discharge.]

940812:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

941019:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 940915.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 941215 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  The Board disagrees with the Applicant’s claim that he was not afforded all of his due process rights.  The record clearly demonstrates the Applicant consulted with legal counsel and waived his right to an administrative board.  The record is void of any evidence to support a claim of impropriety.  His service record is marred by award of non-judicial punishment (NJP) on three separate occasions for various offenses some of which are triable by court-martial.  Commission of a serious offense and illegal drug use warrants processing for separation, normally under other than honorable conditions.  An upgrade to general (under honorable) conditions would be inappropriate.  Relief denied.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  

Issue 2: 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, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

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), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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