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

FOR OFFICIAL USE ONLY

ex-BUCR, USN
Docket No. ND06-00768

Applicant’s Request

The application for discharge review was received on 20060516.  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 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 20070216.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read:  “01  01  09.”  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Immaturity.
EQUITY – Post Service.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Character Reference ltr from D_ E_, First Presbyterian Church, dated March 27, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000225 - 20000604	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000605		Date of Discharge:  20010720

Length of Service (years, months, days):

	Active:    01  01  16  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  7 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  53

Highest Rate:  BUCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)		Behavior:  1.0 (3)		OTA:  2.28

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  M16 Service Rifle Sharpshooter Ribbon

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

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

Chronological Listing of Significant Service Events: 

010524:	NJP for violation of UCMJ, Article 86: UA fm 010404 until 010410.
Violation of UCMJ, Article 107: False official statement to BU1 on 010403.  Violation of UCMJ, Article 121: Larceny of a knife on or about 010324-010325.  Award:  Forfeiture of $500.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture for 1 month suspended for 6 months.  No indication of appeal in the record.

010524:	NAVPERS 1070/613, Retention Warning issued to Applicant.  [Extracted from Commanding Officer’s letter of 010611.]

010529:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010524, tested positive for THC.

010607:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 010522.  Award:  Forfeiture of $521.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

010607:	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 drug abuse, misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

010607:	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.

010611:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

010612:	Chief of Naval Education and Training directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010720 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).

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 two nonjudicial punishment proceedings for violations of Articles 86, 107, 112a, 121 of the UCMJ.  The Applicant’s violations of Articles 107, 112a and 121 are serious offenses.  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 is not warranted.

The Applicant implies that his discharge is inequitable because he was immature at the time of service.  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment, employment or educational opportunities.   Relief denied.

The Applicant implies that his discharge is inequitable due to his post-service conduct.  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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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.  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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION 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 107, false official statement, Article 112a, wrongful use of a controlled substance or Article 121, larceny.  

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