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

FOR OFFICIAL USE ONLY

  ex-SN, USNR
Docket No. ND05-00680

Applicant’s Request

The application for discharge review was received on 20050316.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Boston, MA.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

The Applicant submitted no issues.

Documentation

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

Applicant’s DD Form 214

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:  19910304		Date of Discharge:  19940822

Length of Service (years, months, days):

	Active:    03 05 19  
	Inactive:  00 01 15

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  31

Years Contracted:  8 (2 years active duty plus 6 years in the individual ready reserve)

Education Level:  12				AFQT:  32

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (2)		Behavior:  3.4 (2) 		OTA:  3.70 (2) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle “E”, .45 CAL Pistol Sharpshooter, National Defense Service Ribbons, Southwest Asia Service Medal with Bronze Star, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

910117:	Enlistment waiver approved for two non-minor misdemeanors.

910304:	Commenced 24 months of active duty obligation.

910305:	Applicant briefed of Navy's policy on drug and alcohol abuse.

910313:	Retention Warning:  For defective enlistment and induction due to fraudulent entry into naval service by failure to disclose pre-service civil involvement/drug abuse (marijuana use 6 times 1976 thru 1979; cocaine use 4-5 times 1984 thru 29 February 1990; parking violation November1988 Burlington, Ms., Paid $15.00).  Any further deficiencies in performance or conduct may result in processing for administrative separation.

920316:	Applicant charged with violations of the UCMJ Article 91 (disrespect to a petty officer, disrespect to a chief petty officer, willful disobedience of a petty officer) and Article 134 (drunk and disorderly).

920501:	NJP for violations of the UCMJ Article 91 (insubordinate conduct, 3 specifications) and Article 134 (drunk and disorderly).
	Award:  Forfeiture of $50 per month for 1 month, restriction for 15 days.  No indication of appeal in the record.

921010:	Applicant charged with violations of the UCMJ Article 91 (disrespect to a petty officer) and Article 134 (2 specifications, disorderly conduct and communicating a threat).

921016:	NJP for violations of UCMJ, Article 91(insubordinate conduct) and Article 134 (2 specifications, disorderly conduct and communicate a threat).
Award:  Forfeiture of $200 per month for 1 month, restriction and extra duties for 30 days (15 days suspended for 6 months).  No indication of appeal in the record.

930203:	Extended on active duty for 24 additional months.

930315:	Applicant charged with violations of the UCMJ Article 117 (provoking speech) and Article 134 (2 specifications, communicating a threat and drunk and disorderly).

930327:	NJP for violations of UCMJ, Article 117 (provoking speech) and Article 134 (2 specifications, communicating a threat and drunk and disorderly).
	Award:  Forfeiture of $200 per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 30 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

930426:	Applicant completed six weeks of inpatient alcohol rehabilitation at Naval Hospital Bremerton, Washington. 

940630:	NJP for violations of UCMJ, Article 92 (failure to obey lawful order), Article 116 (breach of peace), Article 134 (indecent assault), and Article 134 (drunk and disorderly).
	Award:  Forfeiture of $100 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

940728:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and alcohol rehabilitation failure.

940728:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

940803:	Commanding Officer, USS CAMDEN (AOE 2) recommended to Commander Naval Personnel that SN S_ (Applicant) be discharged “under honorable conditions” by reason of misconduct commission of a serious offense and alcohol rehabilitation failure.  Commanding Officer’s comments:  “Admin Board procedures were used in SNM’s case due to processing for all known reasons.  Primary cause for separation in this case is Level III Alcohol Abuse Rehabilitation Failure.  SNM has a history of alcohol abuse.  SNM is a good worker but shows little potential for further naval service.  ORIG recommends separation under honorable conditions.”

940817:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19940822 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing (by a preponderance of the evidence) that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record.  The Applicant’s service was flawed by 4 nonjudicial punishments (NJP) for violations of the UCMJ Article 91 (disobeying a petty officer, disrespect toward a petty officer and disrespect toward a chief petty officer, 4 specifications), Article 92 (failure to obey an order or regulation), Article 116 (breach of peace), Article 117 (provoking speech or gestures), and Article 134 (drunk and disorderly, disorderly conduct, and communicating a threat, 7 specifications).  Reference (A) defines violations of Articles 91 (disobeying a petty officer and disrespect toward a chief petty officer), Article 92 (failure to obey and order), and Article 134 (communicating threat) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed a serious offense.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Separations under these conditions generally result in an under other than honorable characterization of service.  Relief denied.

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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91 (disobeying a petty officer and disrespect toward a chief petty officer) Article 92 (failure to obey and order), and Article 134 (communicating threat).

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023