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

FOR OFFICIAL USE ONLY

  ex-OSSN, USN
Docket No. ND05-01363

Applicant’s Request

The application for discharge review was received on 20050818.  The Applicant requests the Discharge 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 20060413.  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 and reason for 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

No issues were submitted by the Applicant.

Applicant’s Remarks:  (Taken from the DD Form 293.)

I have conquered my addiction to alcohol and have been sober since July 17, 2001.  I have a wife and child and I want to go back to school which I would need my GI Bill.  This is something I need to do so I can support my wife and child.

Documentation

Only the service record was reviewed.  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:  USNR (DEP)	19971010 - 19980610	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980611		Date of Discharge:  20010323

Length of Service (years, months, days):

	Active:    02  09  13
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  51

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Navy Expeditionary Medal

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

990913:	Retention Warning:  Advised of deficiency (Failed to report for scheduled watch on time on three different occasions.  Counseled on responsibilities and still managed to be late a forth time, resulting in a report chit being generated.  Directed to correct this deficiency during Executive Officer’s Inquiry and case was dismissed.  Conduct was in violation of the UCMJ, and showed a lack of concern, motivation and proper procedure.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991021:	NJP for violation of UCMJ, Article 92 - Dereliction of duty; Article 91- Insubordinate conduct; Article 86(2 specs) - Unauthorized absence.
	Award:  Forfeiture of $559.00 pay per month for 2 months ($449.00 for 2 mos suspended for 6 mos), restriction and extra duty for 45 days (15/15 suspended for 6 mos), reduction to E-2 (suspended for 6 mos).  No indication of appeal in the record.

000225:	Forfeiture of pay and extra duty for 15 days awarded at NJP on 991021 vacated due to continued misconduct.

000225:	NJP for violation of UCMJ, Article 86 (2 specs), (1) on or about 000121, without authority, absent himself from COMTHIRDFLT and did remain so absent until on or about 000122, and (2) On or about 000126, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0645 Divisional Quarters.
	Award:  Extra duties for 45 days.  No indication of appeal in the record.

001122:	Substance Abuse Rehabilitation Department: Applicant does not appear to meet diagnostic criteria for alcohol abuse/dependence.  Recommended treatment: Attend Alcohol Impact - 3 days course.  Attend 1 12-step AA meetings per week until treatment is received.

001208:	NJP for violation of UCMJ, Article 91:  On or about 001109, was disrespectful in language and deportment toward a CPO, 92 - On or about 001109, fail to obey a lawful order issued by a CPO; 117 - On or about 001109, wrongfully use provoking speeches and gestures towards a CPO; 134 - On or about 001109, was drunk and disorderly, and 134 - On or about 001109, wrongfully communicate a threat toward a CPO.
	Award:  Forfeiture of $630.00 pay per month for 2 months, restriction for 45 days, oral admonition, reduction to E-3.  No indication of appeal in the record.

010212:	Applicant scheduled to attend Alcohol Impact between 000226-000228.

010226:	Applicant’s Alcohol Impact class rescheduled, Applicant placed on report for going UA.

010313:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct as evidenced by Commanding Officer’s nonjudicial punishment of 991021, 000225, and a 001208 and by reason of misconduct - commission of serious offenses as evidenced by Commanding Officer’s nonjudicial punishments of 991021, 001208, and violation of the UCMJ, Article 92- Failure to obey a lawful order on 010226.

010313:	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.

010321:	Commanding Officer, Staff Enlisted Personnel, THIRD Fleet directed discharge with a general (under honorable conditions) by reason of misconduct - pattern of misconduct and commission of serious offenses.

010326:	Commanding Officer, Staff Enlisted Personnel, THIRD Fleet forwarded the administrative discharge package to CNPC.  Commanding Officer’s comments:  “SN D_’s (Applicant) discharge and characterization of service is based on his misconduct as documented by three non-judicial punishments for violations of the Uniform Codes of Military Justice for offenses including insubordination, failure to obey lawful orders, provoking speeches and gestures, communicating a threat, unauthorized absences, and dereliction of duty.  Finally, despite documented counseling and attempts to provide professional counseling for alcohol abuse, he failed to go to alcohol treatment.  Accordingly, the negative aspects of SN D_ service outweigh any positive contributions.”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010323 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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.  A general (under 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 three nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, Article 91, insubordinate conduct, Article 92, failure to obey order or regulation, Article 92, dereliction of duty, Article 117, provoking speech and gestures, Article 134, drunk and disorderly conduct, and Article 134, communicating a threat.  Under applicable regulations, a violation of UCMJ Article 91, 92, or 134 is 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, 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 post-service documentation for the Board to consider.  Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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 additional evidence related to this discharge.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION 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, insubordinate conduct, Article 92, failure to obey order or regulation, or Article 134, communicating a 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