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

 
ex-IC3, USN
Docket No. ND04-01183

Applicant’s Request

The application for discharge review was received on 20040722.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.	“Dear DRB: The following issues are the reasons I believe ny discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than Honorable does not apply to my case because of evidence I am submitting.                       Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.                                                            My average conduct and efficiency ratings and proficiency marks were good.                   I received awards and decorations.                                                                             I received letters of recommendation.                                                                       I had combat service.                                                                                                     My records of promotions showed I was generally a good service member.            I was close to finishing my tour that it was unfair to give me a bad discharge.           I have been a good citizen since discharge.                                                              The punishment I got at discharge was too harsh- it was much worse that most people got for the same offense.”

Documentation

The Applicant did not submit any additional documentation for the Board to consider during their deliberations of this case.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	921230 - 930523	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  930524		Date of Discharge:  961114

Length of Service (years, months, days):

	Active:    03  05  21
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rate:  IC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.60 (1)		OTA:  3.80

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/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

930523:	Retention Warning:  Advised of deficiency (defective entry/ failed to disclose pre-service civil involvement/drug abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
 
950804:	NJP for violation of UCMJ, Article 134 (2 Specs):  Uttering worthless checks and dishonorably failing to pay just debts. [Extracted from CO’s letter dated 960226]

951101:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960126:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed a serious offense, that the misconduct did not warrant separation, and recommended retention.

960307:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Award:  Restriction and extra duty for 30 days, reduction to next inferior paygrade (suspended for 3 months).  No indication of appeal in the record.

961013:	LOI for possible involvement in sexual misconduct.

961015:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

961114:	Counseling:  Advised of deficiency, notified of corrective actions and assistance available. [Extracted from CO’s letter dated 961120]

961120:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “Member was presented Statement of Awareness on 15 October 1996.  Member was scheduled to meet with legal counsel on 21 October 1996 but failed to return within prescribed time.  Neither member nor counsel requested extension of time to elect rights.  Accordingly, member has waived his right to an administrative board and General Court Martial review.
	Member was previously processed for an administrative separation and was recommended for retention.  This command supported the decision of the administrative board and afforded Petty Officer Burton an opportunity to continue his naval career.
	Unfortunately, Petty Officer Burton has continued with his pattern of disregard for rules and regulations.  Because his misconduct has become more serious, I strongly recommend this member be separated from the naval service with an Other Than Honorable characterization.”	

Undated:	Commander, Submarine Group Two directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted form CO’s letter dated 961120]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961114 under other than honorable conditions for misconduct due to 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:  The record does not surrport the Applicant’s assertion his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Sailor.  The Applicant’s service record is marred by award of non judicial punishment (NJP) on two separate occasions for violating the UCMJ, Articles 92 and 134, a Letter of Instruction for sexual misconduct and a Retention Warning for failing to disclose pre-service drug abuse thus substantiating his 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 to honorable would be inappropriate.  Relief denied.

Clemency is an act of leniency that reduces the severity of punishment received as a result of a court-martial.  NDRB is only authorized to consider clemency in bad conduct discharge cases.  

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 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 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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