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

FOR OFFICIAL USE ONLY

ex-AEAR, USNR
Docket No. ND06-00819

Applicant’s Request

The application for discharge review was received on 20060511.  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 20070329.  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

IMPROPRIETY – The Applicant’s discharge was improper because he should not have been subject to nonjudicial punishment for his failure to complete extra duties on a federal holiday.

Documentation

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

Basic Military Requirements training manual excerpt (3 pgs)
Applicant’s DD Form 214 (2)
Excerpts from Service Record (24 pgs)
Statement from Applicant, dtd August 7, 2006
Copy of transcript from Western Oklahoma State University

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:  20010614		Date of Discharge:  20031021

Length of Service (years, months, days):

	Active:    02  02  24  
	Inactive:  00  01  114

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  8

Education Level:  12				AFQT:  74

Highest Rate:  AEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  2.0 (1) 			OTA:  2.83 

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: 

030716:	NJP for violations of UCMJ, Article 134: On or about 030509, willfully and maliciously set fire to an automobile with intent to defraud the insurer thereof.  Article 81: On or about 030509, conspire to commit an offense under the UCMJ, to wit: burning with intent to defraud.
	Award:  Forfeiture of $628.00 pay per month for 1 month, extra duty for 45 days and reduction to E-2.  No indication of appeal in the record.

030717:	Retention Warning:  Advised of deficiency (Violations of UCMJ, Article 81, Conspiracy, and Article 134, Burning with intent to defraud.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030903:	NJP for violations of UCMJ, Article 86: Absent with leave.
	Specification: On or about 030901, without authority absent himself from his place of duty at which he was required to be, to wit: Fighter Squadron Composite 12, and did remain so absent until on or about 030902.
	Article 92: Failure to obey order or regulation.  Specification: Having knowledge of a lawful order issued by the Commanding Officer to perform 45 days of extra duty, an order which it was his duty to obey, did, on or about 030901, fail to obey the same.  Article 134: On or about 030901, as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties.  
	Award:  Reduction to E-1.  No indication of appeal in the record.

030903:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

030903:	Applicant advised of rights and elected to consult with counsel, elected to submit a written statement for consideration by separation authority and to obtain copies of the documents used to support the basis for the separation.

030922:	Commanding Officer reported directing the Applicant’s separation by reason of misconduct due to a pattern of misconduct.

031001:	CNPC directed the Applicant's general (under honorable conditions) discharge by reason misconduct due to a of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031021 by reason of misconduct due to a pattern of misconduct (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).  

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 81, 86, 92, and 134 of the UCMJ.  The Applicant’s violations of Articles 81, 92, and 134 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 improper because he was subject to nonjudicial punishment for his failure to “attend extra duty” on a federal holiday.  The Applicant supports his contention through the submission of an excerpt from a training manual entitled “Basic Military Requirements.”  Despite the documentation provided by the Applicant, the Board found no impropriety in the Applicant’s discharge.  The Board did not find any regulations which prohibit the performance of extra duty on holidays.  Relief on this basis is not warranted.

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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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 81, conspiracy to commit arson with intent to defraud, Article 92, failure to obey order/regulation or Article 134, burning with intent to defraud.

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 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