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Docket No. ND01-00242

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

ex-BUCN, USN
Docket No. ND01-00242

Applicant’s Request

The application for discharge review, received 001229, 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.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's statement
Letter dated August 29, 2000
Letter from doctor at VA dated November 14, 2000
Letter from doctor at VA medical center dated August 16, 2000
Letter from staff psychiatrist, Santa Rosa VA Clinic dated November 6, 2000
Statement in support of claim from applicant dated November 22, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	871229  - 880417	COG

Period of Service Under Review:

Date of Enlistment:  880418		Date of Discharge:  920731

Length of Service (years, months, days):

	Active:    04  03  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (13 months extension)

Education Level:  12			AFQT:  63

Highest Rate:  BU3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (6)	Behavior:  3.60 (6)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM, NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900109:	Civil Conviction:  Municipal Court of Gulfport, MS for violation of driving under the influence and obstruction of traffic.
	Failed to appear and was found guilty.
Sentence: Bond facial of $1,014.00 was applied, he did not appeal.

911030:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 45 days, reduction to BUCN.  Reduction suspended for 6 months.  No indication of appeal in the record.

911105:	Vacate suspended reduction to BUCN awarded at CO's NJP dated 31Oct901.

911216:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order on 2Nov91, violation of UCMJ, Article 134: Incapacitation for performance of duties on 2Nov91.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to BUCA.  Forfeiture for 1 month, restriction and extra duty for 20 days and reduction to BUCA suspended for 6 months.  No indication of appeal in the record.

920211:	Drug and Alcohol Evaluation: Applicant found to be psychologically dependent on alcohol.  Recommended for Level III inpatient treatment as soon as possible.  Applicant should be medically screened to rule out physiological dependency and to confirm the CAAC evaluation.

920609:	Applicant refused Level III treatment.

920618:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your refusal to participate in Level III alcohol rehabilitation program and misconduct due to the commission of a serious offense as evidenced by your violations of UCMJ article 92 disobeying a lawful order and civil conviction for driving under the influence of alcohol.

920618:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit statements.

920618:	Commanding officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): BUCN (applicant) has declined participation in directed Level III alcohol treatment and therefore leaves me no choice but to recommend him for an admin separation.  In addition, he must be dual processed as his record contains two serious offenses which dictate the characterization of separation as other than honorable.
 
920718:	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 920731 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).

The applicant’s representative submitted the following as issue 1: (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.  The Board determined that, while the applicant’s performance evaluation averages were good, his service is accurately characterized as having been performed under other than honorable conditions.  During his enlistment, the applicant received a civil conviction for driving under the influence and two NJP’s for unauthorized absence, failure to obey a lawful written order and incapacitation for performance of duties.  These are serious offenses that the Board cannot overlook.  Relief denied.

The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using alcohol in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 92, for failure to obey a lawful written order, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9217A9221