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

 ex-SN, USNR
Docket No. ND04-00318

Applicant’s Request

The application for discharge review was received on 20031210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance review was conducted in Washington, D.C. on 20040923.  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.  “To whom it May Concern,

I served with the U.S. Navy from November 2, 1993 to May 6, 1996.  I was discharged with a less than honorable.  Since then I have solved my alcohol problems and have rejoined the Naval Reserves in January 2002 and have been a member since then.  I would like to be changed to an honorable discharge.  Thank you for your time.

Sincerely, 

K_ P_ ”(Applicant)

Documentation

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

Evaluation Report and Counseling Record, dated January 28, 2002
Applicant’s DD Form 214
DD Form 4/2, dated January 2001 (2 pages)
Enlistment/Reenlistment document, DD Form 4/1, dated January 31, 2001
Application and orders, dated January 31, 2001
Letter from Commanding Officer, dated December 12, 2003 (2 copies)
Letter from Commanding Officer, dated April 9, 2004
Character reference, undated
Evaluation Report and Counseling Record, dated June 20, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930831		Date of Discharge:  960506

Length of Service (years, months, days):

	Active:    02  06  05
	Inactive:  00  02  01

Age at Entry:  24			Years Contracted:  8

Education Level:  15			AFQT:  40

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.50

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/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

931102:	Applicant commenced active duty under the Seaman Apprentice Program.

931103:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  Driving with suspended license 2x, 7/93 & 9/93, Parma, OH, paid $470 total; faulty equipment 7/89, Seven Hills, OH, paid $150 fine; speeding 6/88, Hinkley, OH, paid $120 fine; speeding, 12/88 Parma, OH, paid $130.00.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

940324:	NJP for violation of UCMJ, Article 92:  Failing to obey lawful order not to drink while on watch on 1800, 940315.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

940325:	Retention Warning from USS SHASTA:  Advised of deficiency (Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950316:	NJP for violation of UCMJ, Article 92:  Dereliction of duty.
Award: Forfeiture of $427 per month for 1 month.  No indication of appeal in the record.

950322:	Retention Warning from USS SHASTA:  Advised of deficiency (Dereliction in the performance of duties in that you negligently quit your assumed watch without being properly relieved.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960222:	NJP for violation of UCMJ, Article 134 (2 specs): General article.
	Award: Forfeiture of $528.88 per month for 2 months, restriction and extra duty for 60 days, reduction to SA (suspended for 6 months).  Referred to DAPA.  No indication of appeal in the record.

960311:	USS SHASTA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960311:	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.

960323:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  Recommends that the member be separated under Other Than Honorable conditions.

960419:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000306:	NDRB documentary record review Docket Number ND99-00855 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960506 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.  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 award of nonjudicial punishment (NJP) on two occasions for violations of articles 92 and 134 of the UCMJ.  In addition, the Applicant was retained in the Naval service, despite his defective enlistment and induction due to fraudulent entry into Naval service as evidenced by his failure to disclose his pre-service civil involvement/drug abuse.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that require for an honorable characterization of service.  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 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.  The evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, no relief will be granted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), 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