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

ex-OS3, USN
Docket No. ND01-00447

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010907.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  His violation of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant a fully honorable separation.

2.  (Equity Issue)  This former member further requests that the Board include provision 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:

Copy of DD Form 214
Letter from Applicant
Letter from the National Personnel Records Center

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	901117 - 901120	COG

Period of Service Under Review:

Date of Enlistment:  901121		Date of Discharge: 940217

Length of Service (years, months, days):

	Active:    03  02  27
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  3.72 (5)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

931112:	Retention Warning:  Advised of deficiency (Failure to complete Level III Alcohol treatment, for which you could be administratively separated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940105:	NJP for violation of UCMJ, Article 111: Drunken or reckless driving on 931231, violation of UCMJ Article 134: Drunk in public on 931231.
	Award:  Forfeiture of $200.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

940111:	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, as evidenced by his service record and an alcohol related incident following completion of Level III rehabilitation treatment.

940113:  	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 submit statements in own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

940119:	Medical evaluation indicates applicant reveals no evidence of psychosis or disabling neurosis, does not possess suicidal intentions, not homicidal.  There is not sufficient evidence to warrant the behavioral term, character disorder.  Does not require detoxification, not dependent on drugs, is psychologically dependent on alcohol.  Applicant is an alcoholic.

940126:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense, and alcohol abuse rehabilitation failure, as evidenced by his service record and an alcohol related incident following completion of Level III Rehabilitation Treatment.

940201:	BUPERS directed the applicant's discharge general under 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 940217 general under 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 violation of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant a fully honorable separation.”  The Board found that the applicant’s performance evaluation grades were above average.  However, after considering the applicant’s violation of UCMJ, Article 111 and 134, the Board determined his overall performance was less than Honorable.  It was the opinion of the applicant’s former commanding officer that the applicant’s service to his country was not Honorable, his discharge should be characterized as General (under Honorable conditions) and that he be separated from military service.  The discharge was proper and equitable.  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.  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 did not provide any documentation of post-service.  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.  Relief denied.

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, for drunken or reckless 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 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