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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00737

Applicant’s Request

The application for discharge review was received on 20060420.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the applicant converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070809.  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 by reason of misconduct due to a pattern of misconduct.

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PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity -- Post-service
Equity -- Benefits

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s statement, undated
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19921221 - 19921228	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921229		Date of Discharge:  19960802

Length of Service (years, months, days):

	Active:    03  07  05  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  36

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (2)			 Behavior:  3.6 (2)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal; Southwest Asia Service Medal w/Bronze Star; Sea Service Deployment Ribbon; Navy “E” Ribbon (2); Letter of Commendation (2)

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

940318:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s message dated 960716.]

951208:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s message dated 960716.]

960320:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s message dated 960716.]

960417:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
	Award:  Restriction and extra duty for 15 days, reduction to E-2.  No indication of appeal in the record.

960702:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.  

960709:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to commission of a serious offense and pattern of misconduct.

960709:	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.

960716:	Commanding Officer recommended discharge with a general (under honorable conditions by reason of commission of a serious offense and pattern of misconduct as evidenced by all punishments received under the UCMJ during current enlistment.  Commanding Officer’s comments:  “Disch MBR for misconduct.  Recommend characterization of discharge be general (under honorable conditions).  SR N_(applicant)’s work performance has been marginal.  Offenses should not result in the stigma of an other than honorable discharge.”

960724:	BUPERS directed the Applicant's discharge General (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

960731:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  This message cancels BUPERS 251835ZJUL96.

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 19960802 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests upgrade of the characterization of his discharge to General.  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 a retention warnings and four nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 92 (failure to obey a lawful order), and 112a (use of a controlled substance).  Violations of UCMJ Articles 92 and 112a are considered serious offenses for which a punitive discharge is authorized at courts-martial.  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.

The Applicant mentions post-service conduct in support of his request for upgrade of his discharge.  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 may 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 for mitigating the misconduct that resulted in the characterization of discharge.  

The Applicant stated that he would like an upgrade in order to receive educational and other veterans’ benefits.  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 of 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 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 (failure to obey order), and 112a (use of a controlled substance).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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