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

 ex-OSSN, USN
Docket No. ND02-01082

Applicant’s Request

The application for discharge review, received 020729, requested that the characterization of service on the discharge be changed to honorable, the reason for the discharge be changed to convenience of the government and the reenlistment code changed to RE-1.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a private representative as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant 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 030424.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  96JAN23: CO's NJP held this date UCMJ Art 112A - wrongful use of marijuana on 95Nov28.  The above issue is why I feel I received the discharge I did.  Because of the circumstances at the time.  I felt this was the only way to bring solution to the problems I was involved with.  In no way did I use or have possession of marijuana.  I was never issued a drug test to prove I used marijuana but I did put in writing that I did because I knew it was the only way I would be discharged.  Had I know then that I would need an Honorable discharge today, I would never have acted in such a manner.  Please consider my upgrade for Honorable with the thought in mind that I am trying to improve my way of life for myself and more importantly my family.  I think that my background from the time of discharge to present speaks volumes for the type of person I truly am.  Thank you for you time and consideration.

2. I am writing this letter on behalf of myself.  I submitted an application to have my discharge upgraded from Other Than Honorable to Honorable.  My application was assigned docket number ND02-01082. In addition to the issue of ART 112A, I wish to add ART. 121.  These two issues are why I was discharged.  However, neither issue was proven by way of a blood test, videotape, eyewitness accounts, etc.  The two issues were self-admitted and were in no way factual.  This is the reason why I am requesting your assistance in upgrading my discharge.  Since my discharge in 1996, I have been a model citizen as the letters and documents in my application will prove.  I am aspiring to become a Baltimore County Police Officer and I need an Honorable Discharge in order to carry a firearm in the state of Maryland. Please give all fair and adequate consideration to my application.  Thank you for your time and I wait your decision as soon as possible.

Sincerely,

Documentation

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

Letters from United States Senator, dated June 20, 2002 (2)
Letters from Lt. Governor, State of Maryland, dated June 18, 2002 (2)
Letter from Councilman, 7th District, dated May 9, 2002
Letter to CINTAS, dated April 10, 2001
Job/character reference from CINTAS, the Uniform People, dated November 2, 2001
Progress report (2 pages)
Character reference, dated April 29, 2002
Character reference dated January 12, 2002
Applicant's DD Form 214
Six pages from Applicant's service record
Marriage certification, dated January 7, 2000
Certificate of marriage, dated January 4, 2000
Certificate of live birth, issued March 9, 1999
Affidavit of Parentage, dated January 9, 1999
Certificate of Baptism, dated February 13, 1999
Austin Jonathan Wendt (Applicant's son) social security card

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920818 - 930712	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930713		Date of Discharge:  960223

Length of Service (years, months, days):

	Active:    02  07  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.60 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  2

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

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

Chronological Listing of Significant Service Events:

940102	Applicant reported for duty USS ENTERPRISE (CVN-65).

940401:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 1630, 940302 to 0630, 940303, (2) Unauthorized absence from unit 0645, 940323.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940918:	Applicant to unauthorized absence 940918, intentions unknown.

940920:	Applicant from unauthorized absence 940920 (2 days/surrendered).

941020:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 940918.
	Award: Restriction and extra duty for 10 days.  No indication of appeal in the record.

941024:	Retention Warning from USS ENTERPRISE (CVN 65):  Advised of deficiency (Unauthorized absence on 940918.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950309:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation, consuming alcohol while under age on 960203.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

960123:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 951128, violation of UCMJ, Article 121 (2 specs): Larceny on 951227.
	Award: Forfeiture of $524 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN.  No indication of appeal in the record.

960125:	USS ENTERPRISE (CVN 65) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by your punishments under the UCMJ.

960125:	Applicant advised of 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.

960201	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse and misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): [SNM (Applicant) has appeared at four CO’s NJP’s for seven violations of the UCMJ; including one drug offense and three serious offenses.  His behavior is not in keeping with his enlistment oath and reflects discredit upon himself, this command, and the Navy.  He has no potential for further useful naval service.  Therefore, I recommend that he be separated from the naval service with an other than honorable discharge,]

960209:	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 960223 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 NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces, as requested by the Applicant.  Neither a less than honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief denied.

Regulations limit the Board’s review to a consideration of the propriety and equity of a 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 summary of service clearly documents the pattern of misconduct that earned the Applicant his other than honorable characterization of service.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his repeated disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of 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.  The Applicant’s discharge characterization accurately reflects his service to his country.  An upgrade to honorable would be inappropriate.  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.  Relief denied.

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, 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.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  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 – 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 “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