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

FOR OFFICIAL USE ONLY

ex-AMAA, USN
Docket No. ND06-00616

Applicant’s Request

The application for discharge review was received on 20060406.  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 20070125.  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 General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

PROPRIETY – Should have had a medical discharge.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010712 - 20010729	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010730		Date of Discharge:  20040819

Length of Service (years, months, days):

	Active:    03  00  20
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  GED			AFQT:  38

Highest Rate:  AMAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)		Behavior:  1.0 (1)		OTA:  1.83

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

010712:	Pre-service waiver for alcohol abuse granted.

031229:	NJP for violation of UCMJ, Article 134: Drunk on station.
	Specification: On or about 031208, as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

031229:	Retention Warning:  Advised of deficiency (CO’s NJP for violation of Article 134 (Drunk on station).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040804:	NJP for violation of UCMJ, Article 134:
	Specification 1: On or about 040717, while purchasing alcohol, AMAA K_(Applicant) was ask to remove his military ID from his wallet, AMAA K_ threw his wallet at the clerk and told her to remove it herself.
	Specification 2: On or about 040801, drunk and disorderly in conduct when given his credit card slip to sign for his purchase, he sighed “F--- U” where he was to sign his name.
Violation of UCMJ, Article 86: On 040802, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: HSL-47.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

040804:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of pattern of misconduct.

040804:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040809:	Commanding Officer directed the Applicant’s general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “AMAR K_(Applicant) has continually demonstrated poor judgment and non-compliance with standard rules and regulations.  It must be noted that AMAR K_ entered the United States Navy on an alcohol abuse waiver.  Following CO NJP of 031229 AMAR K_ was afforded Residential Treatment for alcohol dependency, taking him out of the command for four weeks, in an effort to assist him in getting his personal and professional life in order…”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040819 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).  

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 or general 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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 86 and 134 of the UCMJ.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

The Applicant contends that his discharge is improper because he should have been discharged for medical reasons.  There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority.  Further the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Additionally, for the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulation stipulates that separations for misconduct take precedence over potential separations for other reasons.  Therefore, the Board found the Applicant’s issue without merit.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief is not warranted.  

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.  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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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