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

ex-FR, USN
Docket No. ND03-01204

Applicant’s Request

The application for discharge review was received on 20030708.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record 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 20040514.  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/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.  “THE REASON I AM REQUESTING A CHANGE OF DISCHARGE IS TO RECIEVE THE GI BILL.  I DON’T FEEL THE DISCHARGE I RECIEVED WAS UNFAIR.  FACTS ARE FACTS.  I DRANK WHILE UNDER AGE.  I WAS CHARGED WITH THIS THREE TIMES.  I DID NOT DO THIS OUT OF DISCONCERN FOR THE RULES OF THE U.S. NAVY, I WOULD ONLY DRINK BECAUSE MY FRIENDS WOULD DRINK.  I TRIED NOT TO HANG OUT WITH THEM A LOT BUT LIFE IN THE U.S. NAVY COULD GET A LITTLE LONELY.  ASIDE FROM THE PROBLEMS I HAD WHEN DRINKING, I WAS A GOOD WORKER.  I WAS NEVER INSUBORDINATE.  I TOOK A LOT OF PRIDE IN BEING A U.S. SAILOR.  I WAS AND STILL AM UPSET WITH MY DISCHARGE.  I DO ACCEPT RESPONSIBILITY FOR MY DISCHARGE.  I ONLY ASK FOR AT LEAST A LITTLE BIT OF THE GI BILL; FOR THE 28 MONTHS I SERVED OUT OF 48 THAT I ENLISTED FOR.  I AM ALREADY ENROLLED IN AN AVIATION (COMM. PILOTS LICENSE) PROGRAM AT A COMMUNITY COLLEGE IN PHOENIX, AZ.  THANK YOU FOR YOUR CONSIDERATION  C_ B_ (Applicant)”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	931123 - 940828	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940829		Date of Discharge:  970108

Length of Service (years, months, days):

	Active:    02  04  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NER, NDSM, AFEM

Days of Unauthorized Absence:  None

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:

950216:	NJP for violation of UCMJ, Article 92: Wrongfully consuming alcoholic beverages under the age of 21, violation of UCMJ, Article 134: Drunk and disorderly.
	Award: Forfeiture of $213 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

951216:	Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 92, having knowledge of a lawful order issued by Commanding Officer, USS NIMITZ (CVN 68), to wit: NAVPERS 1070/613 dated 10 April 1995, an order which it was his duty to obey, did on 4 November 1995, fail to obey the same by wrongfully consuming alcohol while under the age of 21 years.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960213:	Retention Warning: Advised of deficiency (Alcohol abuse - an excessive involvement with alcohol and/or an alcohol related incident.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960619:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 0700, 960530, violation of UCMJ, Article 92: Violation of lawful general regulation by wrongfully wearing an earring in his ear on 960419.
	Award: Forfeiture of $537 per month for 1 month, restriction and extra duty for 30 days, reduction to FA.  Reduction suspended for 6 months.  No indication of appeal in the record.

961003:	Vacate reduction to FA awarded at CO’s NJP dated 960619 due to continued misconduct.

961024:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Failure to go to appointed place of duty on 960722.
	Specification 2: Unauthorized absence from 0700, 960731 to 960801.
	Charge II: violation of the UCMJ, Article 92 (2 specs):
	Specification 1: Fail to obey lawful order on 960719.
	Specification 2: Dereliction of duties 960926.
	Charge III: violation of the UCMJ, Article 107:
	Specification: False official statement on 960719
	Finding: to Charge I, II, III and the specification thereunder, guilty.
	Sentence: Forfeiture of $437.00, confinement for 20 days, reduced to FR.
	CA action 961025: Sentence approved and ordered executed.

961024:	Applicant to confinement.

961109:	Applicant from confinement.

961206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offenses as evidenced by your violation of the UCMJ, Article 92, violation of a lawful general regulation on 19 April 1996 and violation of a lawful order (two specifications) on 19 July 1996; Article 107, making a false official statement on 19 July 1996; and by reason of misconduct due to a pattern of misconduct as evidenced by your two of more punishments under the UCMJ in violation of an administrative counseling/warning page 13 within your current enlistment.

961206:	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.

961212:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

961212:	COMCARGRU SEVEN 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 19970108 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:  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 youth and immaturity were contributing factors, they do 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 nonjudicial punishment (NJP) on two separate occasions and summary court-martial thus substantiating the misconduct.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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, Change 14, effective 03 Oct 96 until 11 Dec 97), 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