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

FOR OFFICIAL USE ONLY

 ex-SR, USNR
Docket No. ND06-00940

Applicant’s Request

The application for discharge review was received on 20060703.  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 20070419.  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 commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Isolated Incident
Equity:  Post-service

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:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940823		Date of Discharge:  19961129

Length of Service (years, months, days):

	Active:    02  00  26
	Inactive:  00  02  13

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  8 (3 years active)

Education Level:  12				AFQT:  61

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			Behavior:  3.0 (2)		OTA:  3.80

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/1 Bronze Star, Navy “E” Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

941104:	Commenced active duty for a period of 3 years.

960923:	NJP for violation of UCMJ, Article 92:  On or about 1500, 960920, failed to obey lawful order.
Violation of UCMJ, Article 112a: On or about 1830, 960920, wrongfully use marijuana.
Violation of UCMJ, Article 134: On or about 2330, 960920, wrongfully and unlawfully make under oath a false statement.
Additional Charge:
Violation of UCMJ, Article 92: On or about 1830, 960920, wrongfully leaving his buddy.
	Award:  Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

961019:	Applicant waived right to an administrative board conditioned upon being separated from naval service with an Honorable or General characterization.

961019:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offense and misconduct due to drug abuse.

961019:	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.

961020:	Commanding Officer recommended discharge with type warranted by service record by reason of misconduct due to commission of serious offense and misconduct due to drug abuse.

961122:	BUPERS informed USS MOBILE BAY that conditional waivers are not authorized when processing for misconduct due to drug abuse.  If SNM still attached to MOBILE BAY he must reexecute SOA and if he elects, an admin board must be convened.

961129:	Applicant discharged.

961203:	Message from COMCARGRU5 informing Bureau of Naval Personnel that the final discharge was general.

Service Record contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961129 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 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 states his discharge was based on “one isolated incident in 24 months of service with no other adverse action.”  Despite a servicemember’s record of service, certain serious offenses (even though isolated) warrant separation from the Naval service in order to maintain proper order and discipline.   Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  There is credible evidence in the record that the Applicant used illegal drugs.  In addition the Applicant’s service was marred by violations of UCMJ Articles 92 (failure to obey an order) and 134 (false swearing).  Violations of Articles 92, 112, and 134 are considered serious offenses for which a punitive discharge is warranted 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.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant mentions post service conduct in support of his request for upgrade of the characterization 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 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 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.  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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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, Articles 92 (disobey a lawful order), 112a (use of a controlled substance), and 134 (false swearing).

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