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

 ex-BMA, USN
Docket No. ND04-00412

Applicant’s Request

The application for discharge review was received on 20040114.  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 personal appearance discharge review before a traveling panel closest to Nashville, TN.  The Applicant designated the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board does not travel; all hearings are held in the Washington, D.C. area.  Applicant responded to the Scheduling Notice and advised he would be unable to attend a personal appearance hearing, and requests a documentary record review.  Therefore, a documentary record review was conducted.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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.  “Nature of separation to harsh for offense committed.”

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

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________
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 above issue and following statement in supplement to the Applicant’s petition.

Review of the service record reflects that this former member maintained satisfactory performance and conduct markings with an OTA of 3.3 and earned the SSDR(3), AFEM(2), NDSM, NUC, and SACM(2).  He was awarded NJP on 880630 for VUCMJ, Art. 112a; NJP on 890516 for VUCMJ, Art. 128; NJP on 901103 for VUCMJ, Art. 117; NJP on 910726 for VUCMJ, Art. 112a; NJP on 910805 for VUCMJ, Art. 86, 90, 91.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his discharge is too harsh for his offenses.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, 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:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870922 - 870922	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870923		Date of Discharge:  910906

Length of Service (years, months, days):

	Active:    03  11  14
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  26

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.24 (5)	Behavior:  3.2 (6)		OTA:  3.32

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(3), AFEM(2), NDSM, NUC, SACM(2)

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:

870924:	Briefed on the Navy’s Alcohol/Drug abuse policy.

871110:	Retention Warning from Recruit Training Command, San Diego, CA:  Advised of deficiency (as a result of a command directed urinalysis held on 6 June 1988, which proved positive for Cocaine and Marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880606:	Retention Warning from USS FLINT (AE-32):  Advised of deficiency (as a result of a command directed urinalysis held on 6 June 1988, which proved positive for Cocaine and Marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880630:	NJP for violation of UCMJ, Article 112A:  Wrongful use of controlled substance.
Award:  Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

890526:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery towards a SR on 16 May 1989.
	Award:  Confinement on Bread & Water for 3 days.  No indication of appeal in the record.

901103:	NJP for violation of UCMJ, Article 117:  Provoking speeches; violation of UCMJ, Article 92:  Failure to obey order or regulation.
Award:  Forfeiture of $100 per month for 2 months, restriction and extra duty for 14 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

901103:	Retention Warning from USS FLINT (AE 32):  Advised of deficiency (CO, NJP conducted on board for violation of UCMJ, Article 117:  provoking speeches and gestures and violation of UCMJ, Article 92: failure to obey order or regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910726:	NJP for violation of UCMJ, Article 112a:  Wrongful introduction  and possession of a controlled substance, to wit:  Marijuana.
	Award: Forfeiture of $481.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Process for admin discharge.  No indication of appeal in the record.

910731:	CO, USS FLINT (AE 32) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

910801:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, waived all rights.  Applicant did not object to the discharge.

910802:	Commanding Officer, USS FLINT, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

910805:	NJP for violation of UCMJ, Article 86:  Absent without leave; violation of UCMJ, Article 90:  Willfully disobeying a superior commissioned officer; violation of UCMJ, Article 91:  Insubordinate conduct toward a chief petty officer.
Award:  3 days bread and water, reduction to E-2.  No indication of appeal in the record.

910820:	CO, USS FLINT advises BUPERS that Applicant determined not drug dependent by a physician.

910904:	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 19910906 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 five separate occasions for violating UCMJ, Articles 86, 91, 92, 112a, 117 and 128 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 would be inappropriate.  Relief denied.

Issue 2:  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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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