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

FOR OFFICIAL USE ONLY

 ex-AR, USNR 
Docket No. ND05-01026

Applicant’s Request

The application for discharge review was received on 20050602.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027.  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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“TO QUALIFY FOR BENEFITS.”

Documentation

The Applicant did not provide additional documentation for the Board’s consideration.

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:  19941115		Date of Discharge:  19960709

Length of Service (years, months, days):

	Active:    01 07 05
	Inactive:  00 00 19

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  8 (USNR, 3yr active)

Education Level:  12				AFQT:  65

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1)			Behavior:  2.0 (1)		OTA:  2.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Meritorious Unit Commendation

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

941204:	Commenced 3-year active duty commitment of 8-year reserve contract.

941205:	Initial enlistment contract documents five misdemeanors (1 minor in possession, 1 trespassing, and 3 failure to appear), waiver granted. 

951028:	Arrested by San Diego Police for driving under the influence of alcohol.  BAC 0.17%.

951111:	Arrested by California Highway Patrol for driving under the influence of alcohol.  BAC 0.08%.

951214:	Counseling:  Advised of deficiency (absent from aircraft watch), notified of corrective actions and assistance available.

951215:	Applicant unauthorized absent from aircraft watch. 

951227:	Civil Conviction:  San Diego Municipal Court, driving under the influence of alcohol.  Applicant pled guilty.   

960116:	NJP for violation of UCMJ, Article 86 (unauthorized absence, place of duty).
	Award:  Restriction for 30 days, reduction to E-1.  No indication of appeal in the record.

960220:	Civil Conviction:  San Diego Municipal Court, driving under the influence of alcohol.
Sentence:  Fine $1500.00, probation for three years, directed to complete special program of alcohol related prevent course for 29 days.

960530:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to civil conviction as evidenced by all civilian conviction during your current enlistment.

960531:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

960620:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to civil conviction, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).

960702:	Commanding Officer, Transient Personnel Unit, San Diego, CA recommended to Chief of Naval Personnel that AR K_ S. T_ (Applicant) be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to civil conviction.  Commanding Officer’s comments:  “I concur with the findings and recommendation of the Board that AR T_ (Applicant) be separated from the Naval Service with at General discharge for misconduct due to commission of a serious offense and misconduct due to civil conviction”.

960711:	Commanding Officer, Transient Personnel Unit, San Diego, CA advised Chief of Naval Personnel that AR K_ S. T_ (Applicant) was discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to civil conviction.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960709 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

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.  A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  A nonjudicial punishment (NJP) for the Applicant’s violation of UCMJ Article 86 (unauthorized absence, place of duty) and two civilian convictions for driving under the influence of alcohol marred the Applicant’s service.  Though unadjudicated driving under the influence of alcohol is a direct violation of UCMJ Article 111 and is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged.  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.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  Separation under these conditions generally results in a less than honorable characterization.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization based 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 purpose of enhancing medical, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue is with out merit, 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 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.  The Applicant has not provided post service documentation for the Board’s consideration.

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 92 (disobey an order or regulation).

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