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

ex-SA, USN
Docket No. ND03-01116

Applicant’s Request

The application for discharge review was received on 20030610.  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 St. Joseph MO 64501.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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.  “To the Personnel Boards of Naval Council, I A_ T_ (Applicant) is enclosing documentation on my resume, showing since my separation date from the Navy.  I’ve had steady employment.  I also haven’t been in any kind of trouble with law enforcement, due to the nature of my discharge, which shows a pattern of misconduct.  The reason I’am stating these issues, is I feel the type of discharge I received eleven years ago which were under other than honorable conditions, were unjust, especially since I served three years of almost possitive service and had less than one year for seperation.  To the Personnel Boards of Naval Coucil, I feel now that I’am twelve years wiser, the discharged I deserved at the time of seperation, due to time served, behavior, and age at that time, should have been a General Under Honorable conditions, so now eleven years later, since I’ve been steadily employed and trouble free, I’am asking that the Personnel Boards of Naval Council consider strongly to up grading my discharge to Honorable conditions.  Thank you A_ T_ (Applicant)”

Documentation

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

Applicant’s resumé
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871230 - 890411	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890412		Date of Discharge:  920327

Length of Service (years, months, days):

	Active:    02  11  16
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  30

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (5)	Behavior:  3.40 (5)		OTA:  3.64

Military Decorations:  None

Unit/Campaign/Service Awards:  BEA, NDSM, MUC, SSDR (3)

Days of Unauthorized Absence:  None

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:

900821:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc. of controlled substances.
	Award: Forfeiture of $406 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

900906:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Random urinalysis 900815.  CAAC found Applicant not dependent and recommended Level II treatment.  Commanding Officer recommended Level II treatment and retention.  Comments: MSSA T_ (Applicant) exhibits outstanding potential for future naval service based on his past and present work performance, provided he successfully completes a LVL II treatment program and abstains from any further drug use.  NJP this incident on 900821, Art 112A, use of a controlled substance, awarded 45/45, 1/2 pay for two months, RIR to E-2.  Medical officers eval to follow.

910724:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Random urinalysis 900815.  CAAC and physician found Applicant not dependent and recommended Level II treatment.  Commanding Officer recommended retention and Level II treatment.  Comments: MSSA T_ (Applicant) exhibits good potential for future naval service based on his past and present work performance.

910918:	Retention Warning from LOS ALAMOS (AFDB-7): Advised of deficiency (Your appearance at Captain’s mast this date for violation of UCMJ Article(s) 92, Violations of failure to obey other lawful written order), 121 (Larceny and wrongful appropriation, and 123: Forgery, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910920:	NJP for violation of UCMJ, Article 92: Violation or failure to obey other lawful written order, violation of UCMJ, Article 121: Larceny and wrongful appropriation, violation of UCMJ, Article 123: Forgery.
	Award: Restriction and extra duty for 45 days, reduction to SA.  No indication of appeal in the record.

911213:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence.
	Award: Restriction for 7 days and extra duty for 07 days.  No indication of appeal in the record.

911219:	LOS ALAMOS (AFDB-7) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as result of you being found guilty of the following charges at CO’s nonjudicial punishment: 911213, violation of UCMJ, Article 86: Unauthorized absence, 910920, violation of UCMJ, Article 123: Forgery, violation of UCMJ, Article 121: Larceny and wrongful appropriation, violation of UCMJ, Article 92: Failure to obey a lawful written order; 900821: Violation of UCMJ, Article 112A: Wrongful use, possession, etc., of controlled substances.

911219:	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.

911220:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920108:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920115:	Drug Dependency/Abuse evaluation:  Applicant shows no signs of chemical abuse and/or dependency since 1990.

920122:	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 19920327 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. 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 service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief 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, 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.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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