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

   ex-MMFN, USN
Docket No. ND05-00711

Applicant’s Request

The application for discharge review was received on 20050323.  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 review was conducted in Washington, D.C. on 20050713.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I feel that I should be upgraded to a Honorable Discharge due to the fact that I did serve my country 1 week short of my total enlistment of 4 years.  I was arrested and convicted and sentenced to 20 years in prison for involuntary manslaughter.  It happened from a car accident that I was in while drinking.  I served the mandatory sentence and was released January 18 2005.  Now I am trying to move on with my life and go back to school for computer networking at ITT-Tech and I cannot us my GI Bill that I earned, with a other than honorable discharge. I know that I could have had and should have been a better service member that is why I am trying to do that now.

Thank you very much for your consideration and time.”

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901024 - 901104	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901105		Date of Discharge:  941028

Length of Service (years, months, days):

	Active:    03  11  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rate:  MM3 (frocked)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (4)		Behavior:  3.15 (4)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NER (2), GCA, NDSM, SSDR, SASM (2)

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 3630600.

Chronological Listing of Significant Service Events:

920723:	Applicant on unauthorized absence 0700-0800, 920723.

921116:	NJP for violation of UCMJ, Article 134:  Drunk and disorderly on 921013.
	Award:  Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

921117:	Retention Warning:  Advised of deficiency (Disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940102:	Applicant involved in a drunk driving incident resulting in the death of two civilians.  As of this date, Applicant was pending civilian trial on charges of manslaughter and DUI [Extracted from CO’s letter].

940708:	Applicant on unauthorized absence 1145-1325, 940708.

940804:	NJP for violation of UCMJ, Article 86:  Unauthorized absence on 1145-1325, 940708, violation of UCMJ, Article 91:  Fail to obey lawful order, to wit: failed to report to a watch on 940708.
	Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940829:	Applicant on unauthorized absence 0700-0830 940829.

940911:	Commanding Officer, USS THEODORE ROOSEVELT (CVN 71), recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940912:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  The Applicant was notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

940913:	Applicant advised of rights and having elected not to consult with certified counsel, elected to waive all rights.

941018:	BUPERS 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 19941028 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by felony level civilian charges involving 2 counts of manslaughter and driving under the influence of alcohol for which he was ultimately convicted.  Additionally, the Applicant was awarded nonjudicial punishment on two separate occasions for violations of UCMJ Articles 134, drunk and disorderly, 86, unauthorized absence – place of duty, and 91failure to obey a lawful order.  Under applicable regulations, violations of UCMJ Articles 91, insubordinate conduct, 111, drunken driving, and 119, manslaughter, are all considered a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 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.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer, Article 111, drunken or reckless operation of vehicle, aircraft or vessel, and Article 119, manslaughter, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

E.  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