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

 
ex-MMFN, USN
Docket No. ND04-01108

Applicant’s Request

The application for discharge review was received on 20040629.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041122.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Copy of DD Form 214
Letter from Applicant dated June 21, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961015 - 970527	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970528		Date of Discharge:  010209

Length of Service (years, months, days):

	Active:    03  08  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 month extension)

Education Level:  12			AFQT:  77

Highest Rate:  MMF3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (5)	Behavior:  2.20 (5)		OTA:  2.41

Military Decorations:  None

Unit/Campaign/Service Awards:  AFSM, NMOSR, NM, KM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORBALE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990826:	Retention Warning:  Advised of deficiency (traffic accident while under the influence of alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

991103:	NJP for violation of UCMJ, Article 92:  Dereliction in the performance of duties.
	Award:  Forfeiture of $589 per month for 1 month, restriction and extra duty for 6 months, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

000726:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order or regulation; violation of UCMJ, Article 134 (2 specs): Disorderly conduct and drunkenness and indecent exposure.
	Award:  Forfeiture of $642 per month for 2 months, restriction and extra duty for 60 days, reduction to next inferior paygrade.  No indication of appeal in the record.

000812:	Applicant notified to have been formally evaluated as an alcohol abuser.  Applicant directed to participate in the Outpatient Treatment Program.

000814:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, a pattern of misconduct and alcohol rehabilitation failure.

000821:  	Applicant advised of his rights and having consulted 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.

000918:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
Award:  Forfeiture of $563 per month for 1 months, restriction for 10 days, reduction to next inferior paygrade (suspended for 6 months).  No indication of appeal in the record.

001227:	Applicant refused alcohol treatment.

010118:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

Partial Discharge Package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010209 with a general (under honorable conditions) for misconduct due to a commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

No issues were submitted by the Applicant for the Board’s consideration.  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 general (under 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 non-judicial punishment (NJP) on three separate occasions for violating the UCMJ, Articles 92 and 134 and alcohol rehabilitation failure 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. 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 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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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