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

 ex-AZAN, USN 
Docket No. ND03-00906

Applicant’s Request

The application for discharge review was received on 20030430.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040401.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Applicant marked the box ”I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.” None were found. 

Documentation

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

Copy of DD Form 214
Copy of Driver’s License
Letter of Verification of First Offenders Pardon dated July 30, 2002
Copy of American Legion Membership Card
Copy of Certificate of Completion (Inpatient Phase of Treatment) dated October 14, 1998
Copy of Certificate of Completion (8 day detoxification program) dated September 17, 1998
Copy of Merchant Mariner’s Certificate dated July 29, 2002
Copy of Merchant Mariner’s Document (front and back)
Copy of Employment Certification Letter dated December 12, 2002
Copy of Employment Reference Memorandum dated November 3, 2002
Copy of Certificate of Completion (Rigger Certification)
Copy of Certificate of Completion (Marine Operations Training 8 hour First Aid & CPR) dated November 6, 2000
Copy of Certificate of Completion (Marine Operations Training 12 hour Personal Survival Techniques) dated November 6, 2000
Copy of Certificate of Completion (Marine Operations Training 4 hour Personal Safety & Social Responsibilities) dated November 6, 2000 
Copy of Certificate of Completion (Marine Operations Training 16 hour Basic Fire Fighting) dated November 6, 2000
Copy of Certificate of Completion (Marine Operations Training 16 hour Lifeboatman (includes Lifeboat Competency)) dated December 5, 2001 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890222 - 891009	COG
	Active:   USN			891010 - 920811	HON

Period of Service Under Review:

Date of Enlistment:  920812		Date of Discharge:  931206

Length of Service (years, months, days):

	Active:    01  03  24
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)	Behavior:  3.45 (4)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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:

920812:	Reenlisted at VFA-125 NAS Lemoore, CA for 4 years.

930513:	NJP for violation of UCMJ, Article 91: Willful disobedience of a Superior Petty Officer, violation of UCMJ Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $520.00 pay per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

930518:	Retention Warning:  Advised of deficiency (Failure to obey orders and regulation, disobedience of Superior Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930923:	Civil Conviction:  [Kings County Municipal Court, Lemoore, California] for driving under the influence of Alcohol.
Plead no contest to charges of driving under the influence of alcohol and driving with license suspended/reckless driving. 
Sentence: 5 years probation, 10 days in jail, 80 hours of community service, a fine of $2392.40 and continued attendance of Alcoholic Anonymous (AA) meeting.

931018:	NJP for violation of UCMJ, Article 112: Drunk on duty, was in a duty status when he was arrested for driving under the influence of alcohol.
	Award:  Restriction to NASL for 60 days (suspended for 6 months).  No indication of appeal in the record.

931101:	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 misconduct due to civilian conviction for driving under the influence of alcohol.

931102:	Applicant advised of his 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.

931118:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction for driving under the influence of alcohol. 

931130:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931130:	STRKFITRON ONE FIVE request for absentee discharge.

931207:	BUPERS granted authority to execute OTH Discharge in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19931206 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).

The Applicant did not introduce any decisional issues for the Board’s consideration.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by a civilian conviction and award of nonjudicial punishment (NJP) on two separate occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.  

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous three years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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	 

.