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

 ex-PHAN, USN
Docket No. ND99-00588

Applicant’s Request

The application for discharge review, received 990324, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991221.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Please review my discharge, and based on my previous service, I think my case can be changed.  Im planning on going to college to persue a carrer in environmental.  I need my G.I. bill for college.

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	890228 - 890807	COG

Period of Service Under Review:

Date of Enlistment:  890808		Date of Discharge:  931008

Length of Service (years, months, days):

	Active:    04  02  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  64

Highest Rate:  PH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.43 (6)	Behavior:  3.43 (6)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy “E” Ribbon, SSDR, NDSM, NUC, SWASM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930521:	NJP for violation of UCMJ, Article 111:  Drunken driving (operating a vehicle in a reckless manner while intoxicated, causing the car to crash into a curb and flatten tire).
	Award:  Forfeiture of $520 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

930901:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense and alcohol abuse rehabilitation failure.

930901:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to waive all rights.

930914:	Medical screening for drug and/or alcohol dependency.  Applicant diagnosed as not dependent on drug/alcohol.  Applicant is not amenable to counseling/treatment.  Recommendation from medical examiner was no medical recommendation; return to command for disposition.

930915:	Drug and Alcohol Abuse Report.  Alcohol abuse, 4-7 times per week, ashore, off duty. Applicant not dependent; not amenable to counseling/education.  Recommended disposition was separation from service, not via VA hospital.

930923:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.
 
930927:	Applicant completed Level II treatment.  Applicant was involved in alcohol related incident during the one year aftercare period, equating to alcohol rehabilitation failure. [Extracted from CO’s message dated 231540Z SEP 93.]

930930:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931008 under Other Than Honorable conditions for Misconduct due to Commission of a Serious Offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant’s performance marks indicate he was an above average performer for the majority of his career.  However, drunken driving is a serious violation of the UCMJ, which is punishable by court-martial and could result in a punitive discharge.  Additionally, the Board is under no obligation to upgrade an individual discharge for the purpose continuing education.  Relief denied.

The following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service.  The Board reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  This applicant’s discharge was proper and equitable.  Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general).  Those factors include but are not limited to the following:  Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate).  The applicant has not provided any documentation of good character and conduct which could warrant an upgrade to his discharge.  The applicant is encourage to establish a reputation of good character.  He is also reminded that he remains eligible for a personal appearance hearing.  Documentation to support any claims of good character are a must.  An application must be received by the NDRB within fifteen years from the date of his discharge or it will be denied.  It is advisable to have legal representation at the hearing.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, Drunken driving, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023