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

 ex-SR, USN
Docket No. ND03-00313

Applicant’s Request

The application for discharge review was received on 20021213.  The Applicant requests that the characterization of service received at the time of 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 20031114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I contend my discharge was not justified for the offenses committed.  I had numerous captains' mast while on active duty.  I had a problem with alcohol at the time, which contributed, to my problems.  The Navy knew I had a drinking problem and never offered any services such as counseling, hospitalization etc to assist with my problems.  I had above average evaluations in all my job assignments.  The problems became apparent from my drinking.  I would like to re-enter the service as I am older now and I have been able to curtail my drinking at this time.  And would like the opportunity to re-enlist and perform my duties in an honorable fashion.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000323 - 000329	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  000330		Date of Discharge:  010710

Length of Service (years, months, days):

	Active:    01  03  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  * NMF		Behavior: NMF		OTA: NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy “E” Ribbon

Days of Unauthorized Absence:  None

*  No Marks Found
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:

001129:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation, violation of UCMJ Article 86: absence without leave, violation of UCMJ Article 134: drunkenness- incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquors.
	Award:  Forfeiture of $502 per month for 2 month(s), restriction and extra duty for 45 days.  No indication of appeal in the record.

010215:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation, violation of UCMJ Article 86: absence without leave.  
Award:  Forfeiture of $502 per month for 2 month(s), restriction and extra duty for 45 days.  No indication of appeal in the record.

010405:	NJP for violation of UCMJ, Article 89:  Disrespect towards a superior commissioned officer.  
Award:  Forfeiture of $502 per month for 2 month(s), restriction and extra duty for 45 days, reduction in rate to SR.  No indication of appeal in the record.

010607:	NJP for violation of UCMJ Article 86(2 specs):  absence without leave, violation of UCMJ Article 89:  Disrespect towards a superior commissioned officer, violation of UCMJ Article 92:  Failure to obey order or regulation
Award:  Forfeiture of $502 per month for 2 month(s), restriction and extra duty for 45 days.  No indication of appeal in the record.

010608:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

010608:  	Applicant advised of his rights and having elected not to consult 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.

010612:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.  Commanding Officer’s comments, [SR R_ (Applicant) clearly has a pattern of misconduct with 4 masts in 7 months.  His chain of command describes him as a burden.  His actions are totally unacceptable and detrimental to the command.  He is unwilling to adhere to the rules and regulations of this command and the U.S. Navy, and has not carried himself in a manner conducive to good order and discipline.  I strongly recommend that SR R_ (Applicant) be separated from the naval service by reason of pattern of misconduct and commission of a serious offense.  It is my desire that his characterization of service be under other than honorable.   

010613:	COMFAIRMED NAPLES IT 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 20010710 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.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his alcohol abuse was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on four separate occasions thus substantiating the misconduct.  Concerning the Applicant’s reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither an under other than honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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