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

ex-ASAN, USN
Docket No. ND01-00048

Applicant’s Request

The application for discharge review, received 001013, 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 010329.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630610.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

I request that the character of my Discharge be upgraded from General Under Honorable Conditions to Honorable for the Following reasons:

1)	I do not believe enough consideration was given by my superiors (who discharged me) for the good factors of my military service.  In fact, it is plain to see that any good qualities that might be mentioned were omitted. (Please see the attached letter from my Commanding Officer dated 24 Jul 97 as reference to my point.)

2)	Part of the reasons used or referenced that led to the character of discharge I received was the event which occurred in August, 1995, in New Zealand (please refer to my personal statement attached to the referenced evidence dated 24 Jul 97 above).  My superiors ignored any defense I tried to present on my behalf concerning that incident.  I realize that they were obligated to conduct 'damage control' to defuse the incident for the good of the Navy and our country; but, I believe that I was more of a scapegoat than actually guilty of the charges that were made.  However, I accepted the punishment rendered, because I was thinking of the Navy as well and I believe then as well as now that it was the practical route to go at that exact moment.  But, after the incident became faded memory, I believe that a more concerted effort should have been made to exonerate me due to the fact I was no more involved with the actual crime than either you or those who prosecuted me were.  Therefore, I do not think it fair and equitable justice to have included that incident in the reasons for discharging me with a General Discharge.

3)	I believe that I more than proved I repented any adverse actions on my part -while on Active Duty and wholeheartedly sought help with a problem I had with alcohol.  I knew I needed to do something before I left the service and started my civilian life.  No matter which decision on my request the Honorable Board members render, I will always be grateful for the help that was provided me by the Navy with my alcohol problem.  I am glad to say that the guidance and education I received has been very successful.

4)	I have led a good productive life since leaving the Navy and I know that I can offer so much more to my employer, my community and my country.  However, with the character of discharge I have, it will be impossible for me to acquire the higher education I need to fulfill my obligations to my community and nation and eventually my family.  The education I speak of is a college education, which I can only receive with the assistance of the GI Bill.  Unfortunately, my character of Discharge precludes me from using the GI Bill even though I paid into the program.  I believe to deny my request for an upgrade of my discharge would be to also deny the best I can give to all concerned.  Thank you for your time and consideration.

Documentation

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

Copies of DD Form 214 (2)
CO's message (4pgs)
Applicant's Statement

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	920528 - 930517	COG

Period of Service Under Review:

Date of Enlistment:  930518		Date of Discharge:  970918

Length of Service (years, months, days):

	Active:    04  04  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rate:  AS3

Final Enlisted Performance Evaluation Averages (number of marks):

4.0 Evals:  Performance:  3.60 (2) 	Behavior:  3.40 (2)		OTA:  3.50

5.0 Evals:  Performance:  3.00 (4)	Behavior:  2.25 (4)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, BATTLE"E", NDSM, ASM, SSDR (2ND) 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630610.

Chronological Listing of Significant Service Events:

930519:	Retention Warning: Despite you defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement and/or drug abuse: Speeding, 10/92, Bell City, MO written warning.

940830:	Record of Counseling: Performance, personal behavior, responsibilities.

940906:	Record of Counseling: Responsibilities, safety.

941106:	Record of Counseling: Performance, personal behavior.

941113:	Record of Counseling: Responsibilities.
 
950807:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, by wrongfully entertaining female visitors after 2200 hours.
	Award:  Restriction to the confines of NAWS Point Mugu and extra duty for 30 days.  No indication of appeal in the record.

950808:	Retention Warning:  Advised of deficiency (Repeated violations of the UCMJ, as evidenced by Commanding Officer's NJP of 950807 for the following offense: Article92 (failure to obey order or regulation). Specifically, you have been involved in several alcohol related incidents since joining the military and were taken to Captain's Mast for an incident involving underage drinking and having visitors in your room past 2200 hours that occurred on 950714.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

951204:	Record of Counseling: Personal behavior, temper/professionalism.

960417:	Record of Counseling: Performance, personal behavior and responsibilities.

960709:	Record of Counseling: Responsibilities.

961105:	Record of Counseling: Responsibilities.

961203:	Record of Counseling: Performance and personal behavior.

970522:	NJP for violation of UCMJ, Article 86: Without authority, go from his duty section with the intent to abandon the same.
	Award:  Forfeiture of $622.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.
	
970528:	Civil Conviction:  Ventura County Municipal Court for violation of California Vehicle Code, Section 23152 (a) - Driving Under the Influence; California Vehicle Code, Section 23152 (b) - Driving Under the Influence of Alcohol/Drugs Blood over .08; California Vehicle Code 12500 (a) - Unlicensed Driver.
Sentence:  Fined $1,429.00, ordered to serve 45 days in Ventura County Jail (deemed served), 40 hours direct work for Ventura County.

970529:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to civil conviction as evidenced by Ventura County Municipal Court Case #: 97S001332, misconduct due to a pattern of misconduct as evidenced by commanding officer's nonjudicial punishments of 950807 and 970522, and misconduct due to commission of a serious offense as evidenced by commanding officer's nonjudicial punishment of 950807.

970603:  	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a statement in own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

970618:	Medical Officer diagnosed applicant as alcohol dependent.

970703:	Applicant completed Level III Treatment.

970724:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to civil conviction as evidenced by Ventura County Municipal Court Case #: 97S001332, misconduct due to a pattern of misconduct as evidenced by commanding officer's nonjudicial punishments of 950807 and 970522, and misconduct due to commission of a serious offense as evidenced by commanding officer's nonjudicial punishment of 950807.  Commanding officer’s comments (verbatim):  Airman____(applicant) has been and continues to be an administrative burden for his entire chain of command.  As can be seen from his record, he has been counseled numerous times for deficiencies in performance and handling of his responsibilities, as well as problems with his personal and professional behavior.  Airman____(applicant) has also twice been to Captain’s Mast, once for unauthorized absence and once for violating two separate general orders.  All attempts at counseling him have had no discernable effect on his performance, and his continued misconduct has shown him to be totally unreliable and irresponsible. 
		To Airman____(applicant)  credit, he has attended Level III at the Substance Abuse Rehabilitation Department in order to help him with his alcohol dependency; however, in past occurrences alcohol contributed only slightly to his total problem.  Airman_____(applicant) shows no potential for further military service and after considering all pertinent facts, I will separate Airman____(applicant) from the naval service with a General discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 970918 general under honorable conditions for misconduct due to civil conviction (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In response to applicant’s issue 1, the Board found that the applicant’s superiors did take into consideration the “good factors” of the applicant’s service which is why the applicant received a general discharge vice an other than honorable discharge.  Relief will not be granted concerning this issue.

In response to applicant’s issue 2, the Board determined that to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issue 3, the Board appreciates the fact that the applicant sought and received help for his alcohol problem.  However, though the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions.  They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

In response to applicant’s issue 4, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school.  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 the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 
 
Pertinent Regulation/Law (at time of discharge)

A.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - CIVILIAN CONVICTION.

B.  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.  

C.  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.

D.  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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

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