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

 ex-BMSN, USN
Docket No. ND04-00067

Applicant’s Request

The application for discharge review was received on 20031014.  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 listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB.  However, the Board did find that there was an impropriety.  The Board’s vote was unanimous that the character of the discharge shall change to GENERAL.  The Board’s vote was unanimous that the narrative reason shall not change.  The narrative reason shall remain: 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.  “My discharge was inequitable because it was based on one isolated incidents in 36 months service with no other adverse action.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Propriety Issue:  Based on our review of evidentiary record and in accordance with on NAVMILPERSMAN, Art. 3640370, we aver on behalf of this former member that an administrative error occurred during the processing of his discharge that warrants the Board’s relief with an appropriate characterization upgrade.

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Review of the service record reflects that this Applicant maintained satisfactory markings with an final performance average of 3.32, received and honorable separation from the Naval Reserve (860825-910116) and was issued a MUC, NDSR, AFEM, GMSM, SASM (2).  He was awarded NJP on 910730 for VUCMJ, Art. 112; NJP on 910826 for VUCMJ, Art. 112; NJP on 930624 for VUCMJ, Art. 86 and NJP on 931008 for VUCMJ, Art. 134.  His due process included an ADB which determined 931021 that he committed a pattern of misconduct and was an alcohol rehabilitation failure, and recommended separation with a GD.   His CO recommended UOTHC.  He was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600 on 940113.

We opine that this Applicant’s characterization of service was improperly assigned.  The BUPERS erroneously authorized an UOTHC as evidenced by No.4 of the remarks section of the directive: “Concur with commanding officer’s recommendation for an OTH disch.  However, such action is precluded by MPM 3640370.1A (2) (C)”.  As the noted, the reference states, in substance, that the CHNAVPERS is limited to changing the ADB’s recommended General characterization to a more favorable one or an appropriate uncharacterized description.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his misconduct was limited to isolated events.  He has submitted 8 pages of additional documentation attesting to his positive post-service conduct for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Resume (2 pages)
Letter from N__ M. T___, Supervisor Legal Instruments Examiner, U.S. Coast Guard
Copy of SAMHSA Periodic Drug Testing Form
Copy of Fingerprint Card
Copy of Birth Certificate
Copy of High School Diploma
Copy of DD Form 214
Copy of Character Reference Letter dated January 18, 1995
Receipt from Social Security Administration dated December 18, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (RELAD)	860825 - 910116	HON
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  910117		Date of Discharge:  940113

Length of Service (years, months, days):

	Active:    02  11  24
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (5)	Behavior:  3.28 (5)		OTA:  0.00

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, AFEM, GMSM, SASM (2)

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:

910726:	NJP for violation of UCMJ, Article 112: Drunk on duty.
Award:  Confinement on Bread & Water for 3 days, reduction to E-2.  No indication of appeal in the record.

910823:	NJP for violation of UCMJ, Article 112: Onboard USS NIAGARA FALLS (AFS-3) on or about 2123, 910630, in a duty status, was found drunk while attempting to leave the ship in civilian attire, BAC 0.265.
Award:  Forfeiture of $100.00 for a month, restriction for 45 days.  No indication of appeal in the record.

910926:	Retention Warning from [USS NIAGARA FALLS (AFS-3)]:  Advised of deficiency (Violation UCMJ, Article 112, Drunk on duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930310:	Applicant found alcohol dependent during drug and alcohol evaluation.
 
930624:	NJP for violation of UCMJ, Article 86: Did on or about 0745, 930620, without authority, absent himself from his appointed place of duty, USS NIAGARA FALLS (AFS-3) and did remain so absent until on or about 1250, 930620, a period of 5 hours and 5 minutes, violation of UCMJ, Article 134: Drunk on duty.
Award:  Forfeiture of $200.00 for a month, restriction for 14 days.  No indication of appeal in the record.

930810:	USS NIAGARA FALLS (AFS-3) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by having an alcohol related incident within three months of completing Level III treatment and by reason of misconduct due to a pattern of misconduct as evidenced by three punishments under the UCMJ during your current enlistment.

930823:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

931008:	NJP for violation of UCMJ, Article 134: On or about 1445, 931001, as a result of wrongful previous overindulgence in intoxicating liquor, incapacitated for the performance of his duties.
	Award: Restriction for 30 days.  No indication of appeal in the record.

931021:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant is an alcohol abuse rehabilitation failure and had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

931214:	Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct.

931223:	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 19940113 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 equitable but improper.  (C and D).

Issue 1.  The Applicant contends that his discharge was inequitable because it was based on one isolated incident in “36 months.”  In fact, the Applicant was subject to four nonjudicial punishment proceedings for five violations of the UCMJ, to include violations of Articles 86, 112 and 134.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted on this basis.

Issue 2.  Regarding the 8 pages of additional documentation attesting to positive post-service conduct, 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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the character of his discharge.  Therefore, relief on this basis is inappropriate.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned there was an impropriety in the characterization of the applicant's service.   As noted, MPM 3640370.1A (2)(C) permits CHNAVPERS to concur with the ADB recommendation or assign a more favorable characterization.  However, CHNAVPERS directed an Under Other Than Honorable Conditions discharge when the ADB recommended a GENERAL discharge.  Therefore, the Board granted partial relief on the grounds of propriety.  The Board found that Applicant’s discharge shall be characterized as GENERAL in keeping with the ADB’s recommendation.

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