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

ex-SR, USN 
Docket No. ND04-00842

Applicant’s Request

The application for discharge review was received on 20040426.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. Sea Service Time

2.  Benefits

3.  Unfair Treatment.

There are three reasons why I think I deserve an upgrade they are: Sea service time, benefits paid for, and unfair treatment.  I joined the Navy to serve my country and to get discipline.  When I was two years old I was taken away from my biological parents.  I was in the foster care system for 7 years of my childhood.  At the age of nine I was legally adopted.  The Navy I thought would be the best fit for me.  I joined when I was 19 right after high school.  To me a lot of the times in the Navy I did a good job and worked hard.  I always volunteered to do the hardest work, but when it came to liberty I couldn’t handle it.  When I was young I found alcoholism to take away the hurt and pain of being taken away from my biological parents.  While in the Navy I drank because it became a habit.  I never wanted to be like everybody else I wanted to succeed, but the alcohol took over my life.  My life was hard before the Navy and I managed to get a high school diploma and serve three years in the US Navy.  Every NJP was alcohol related.  The Commanding Officer sent me to alcohol rehab.  There they evaluated me and sent me back to the same ship.  The Commanding Officer said that he would try to see if he could send me to another ship so that I could have a fresh start.  That never happened and I made another poor decision that resulted in an: “Other Than Honorable” discharge.  Yes I am an adult, but alcoholism is a disease and until you receive the full treatment you will always turn to alcohol.  If it weren’t for alcohol I would still be in the US Navy.  Since the Navy I have married and have children of my own.  I have a full time job and spend my free time with my family.  I know now what I didn’t know for years and that is what family is.  My wife and children have changed my life for good and all I am asking for is my benefits for them.  I feel three years served has to entitle me to something.  I will respect any decision the review board makes.  Thank you for giving me the opportunity to hear my side.

J_ R_ S_ E_ (Applicant)”

Documentation

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

Evaluation Report and Counseling Record (3 pages, back pages only)
Congratulations certificates, dated August 21, March 28, 2003, and August 14, 2003
Dish Network, Service Award Certificate, dated March 2003
Dish Network, Service Award Certificate, dated March 2004
Qualification Certification, undated
Letter from Texas Department of Family and Protective Services to Applicant, dated April 1, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970807 - 971116	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971117		Date of Discharge:  001227

Length of Service (years, months, days):

	Active:    03  01  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  1.75 (4)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NER (2), AFEM, SSDR, CGUCR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

981211:	NJP for violation of UCMJ, Article 86: Absent from 0000-2054, 981118.
	Award:  Dismissed with page 13 entry.  No indication of appeal in the record.

981211:	Retention Warning: Advised of deficiency (Absence from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990524:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer, violation of UCMJ, Article 91 (2 specs): Insubordinate conduct toward petty officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $530 per month for 2 months, restriction and extra duty for 45 days.  Restriction and extra duty for 10 days suspended for 6 months.  No indication of appeal in the record.

000405:	NJP for violation of UCMJ, Article 92: Failure to obey lawful general or regulation.
	Award: Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

000629:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

001026:	NJP for violation of UCMJ, Article 78: Accessory after the fact, violation of UCMJ, Article 81: Conspiracy.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

001031:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

001031:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001212:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

001218:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001227 under other than honorable conditions for misconduct due to the commission of a serious offense (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:  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 five occasions for violations of Articles 78, 81, 86, 90, 91 and 92 of the UCMJ.  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 required for an honorable characterization of service.  Relief denied.

Issue 2:  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 

Issue 3:  The Applicant stated that he experienced “unfair treatment.”  There was nothing in the records, nor did the Applicant provide any documentation, to refute the presumption that he was treated inequitably by his chain of command.  Relief denied.

The following is provided for the edification of the Applicant.  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, and certification of non-involvement with civil authorities.  The Applicant’s 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 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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