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

 ex-AOAR, USN 
Docket No. ND03-00752

Applicant’s Request

The application for discharge review was received on 20030328.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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, the Applicant 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.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Discharge upgrade to honorable.

2.  GI Bill funds to be compensated $1200 and $8000”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“3.  (Equity Issue) This former member proffers that his UOTHC discharge is too harsh because the positive aspects of his service record were not considered when assigning his characterization of service.  On this basis, he avers that upgrade is warranted.”

4.  (Equity Issue) This former member finally 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:

Statement from Applicant, dated March 14, 2003
E-mail dated March 12, 2003 (10 pages)
Job/character reference, dated March 4, 2003
Character reference, undated, signed by eighteen members of Cedar Island United Methodist Church including the Reverend
Character reference, dated February 9, 2003
Character reference, dated February 10, 2003
Letter to the Applicant from United States Senate, dated December 6, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871219 – 880804	ELS
		   USNR (DEP)	900112 – 900401	COG
Active:   None

Period of Service Under Review:

Date of Enlistment:  900402		Date of Discharge:  930303

Length of Service (years, months, days):

	Active:    02  11  02	Does not exclude lost time
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  33/37

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (2)	Behavior:  2.50 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM w/2 Stars, SSDR, NUC

Days of Unauthorized Absence:  80/82

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900831:	NJP for violation of UCMJ, Article 121: Larceny from the Navy Exchange on 900729.
	Award: Forfeiture of $125 per month for 1 month, restriction and extra duty for 14 days.  Restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

910619:	Applicant to unauthorized absence 0600, 910619.

910620:	Applicant from unauthorized absence 0620, 910620 (1 day/surrendered).

911220:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 911117 to 1000, 911127 (10 days/surrendered).
	Award: Forfeiture of $376 per month for 2 months, restriction for 45 days, reduction to AOAR.  Reduction suspended for 6 months.  No indication of appeal in the record.

911220:	Retention Warning from USS AMERICA (CV 66):  Advised of deficiency (Misconduct by evidence of your nonjudicial punishment of 911220 for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence from 911117 to 911127.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
   
920319:	NJP for violation of UCMJ, Article 134: Communicate a threat on 920307.
	Award: Forfeiture of $392 per month for 1 month, restriction and extra duty for 45 days, reduction to AOAR.  No indication of appeal in the record.

920812:	Applicant to unauthorized absence 0730, 920812.

920821:	Applicant from unauthorized absence 0715, 920821 (9 days/surrendered).

920904:	Applicant to unauthorized absence 0800, 920904.

920919:	Applicant from unauthorized absence 1339, 920919 (15 days/surrendered).

921105:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (4 specs):
	Specification 1: Unauthorized absence from 0630, 920929 to 2020, 921015 (16 days/surrendered).
	Specification 2: Unauthorized absence from 920902 to 920919 (17 days).
	Specification 3: Unauthorized absence from 0430, 920828 to 0700, 920831 (3 days/surrendered).
	Specification 4: Unauthorized absence from 0430, 920824 to 0730, 920826 (2 days/surrendered).
	Charge II: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana between 920829 to 920901.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $522.00, confinement for 30 days.
	CA action 921107:  Sentence approved and ordered executed.

921210:	Substance Abuse/Dependency Evaluation: Applicant found not dependent on marijuana.

930126:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0630, 921216-0630, 930110 (24 days).
	Charge II: violation of the UCMJ, Article 87:
	Specification: Miss movement on 921217.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Break restriction on 921216.
	Finding: to Charge I, II and III, the specifications thereunder, guilty.
	Sentence: Forfeiture of $542.00, confinement for 30 days.
	CA action 930205:  Sentence approved and ordered executed.

930131:	USS AMERICA (CV-66) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse as evidenced by all of your summary courts-martial and all nonjudicial punishments documented in your service record.

930201:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930223:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse.

930303:	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 19930303 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 1-3:  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 characterization of service was too harsh, his service record is marred by two court-martial convictions and by award of non-judicial punishment (NJP) on three separate occasions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational benefits as requested in the issue.  Regulations limit the Board’s 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.   Relief denied.  

Issue 4:  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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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, effective 15 Aug 91 until 
04 Mar 93), 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