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

  ex-FR, USN
Docket No. ND05-00751

Applicant’s Request

The application for discharge review was received on 20050321.  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/PATTERN OF 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 was informed while being discharged, that within (6) months of dismissal I could up grade discharge.  Due to lack of information I gave up.  Now I have been informed of procedures, and now would like to further pursue action in process.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910916 – 920805	COG (Fail to grad)
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  921027		Date of Discharge:  941117

Length of Service (years, months, days):

	Active:    02  00  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  51

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)		Behavior:  3.35 (4)		OTA:  3.50

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/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940802:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from appointed place of duty and dereliction of duty.
Award:  Restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

930805:	NJP for violation of UCMJ, Article 86 (3 specs):  On or about 930712, 930713, 930714, without authority go from his appointed place of duty.
	Award:  Forfeiture of $150.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

940812:	Retention Warning:  Advised of deficiency (Unauthorized absence from appointed place of duty from on or about 0810 to 1050, 940708, to wit: workcenter on board USS KEARSARGE (LHD-3) located at Naval Station, Norfolk, Virginia, in violation of the UCMJ, Article 86; dereliction of duty in that he failed to remain awake and alert during working hours, in violation of the UCMJ, Article 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940928:	Punishment of RIR to SA suspended at CO’s NJP of 940728 vacated this date due to continued misconduct. 

940928:	NJP for violation of UCMJ, Article 112a:  Wrongfully use marijuana on or about 940906.
	Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

941005:	USS KEARSARGE (LHD-3) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment and drug abuse as evidenced by all drug incidents in your current enlistment.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

941005:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to the separation.

941025:	DAPA informed Medical Officer that after reviewing Applicant’s records and personal interview it was determined that the Applicant is not a drug abuser.
  
941026:	Medical Officer informed Legal Officer that after review of Applicant’s record and personal interview the Applicant was diagnosed as not drug dependent. 

941101:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment and drug abuse as evidenced by all drug incidents in current enlistment.

941114:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

941129:	Commanding Officer forwarded recommendation for separation and discharge authorization to Chief of Naval Personnel.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941117 under other than honorable conditions for misconduct due to a pattern of misconduct (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.  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 unauthorized absences, dereliction of duty, and illegal drug use.  This misconduct resulted in three nonjudicial punishment proceedings for violations of UCMJ Articles 86 and 112a and a retention warning/counseling for unauthorized absence.  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.

The Applicant states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  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, credible evidence of a substance free lifestyle 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 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 – A PATTERN OF MISCONDUCT.

B.  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.

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