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Docket No. ND04-00273

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

ex-AZ3, USN
Docket No. ND04-00273

Applicant’s Request

The application for discharge review was received on 20031201.  The Applicant requests the 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 list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Board:  I feel that my discharge was improper because I was less than 3 months from completing my 4 year tour of Duty in the Navy (I served 3 years 9 months) and I would have Received a honorable Discharge.  I was given a General (under Honorable Conditions) discharge mostly because the only Problems I ever had were alcohol related and they occurred in the Civilian World, I never had discenplanary Problems in the Fleet.  I admitted to my chain of command that I needed help with alcoholism at the time.  I told my chain of command that I felt like Alcohol had become my “escape Goat” to dealing with Navy life.  Eventually I got arrested out in town for some alcohol related incidents/driving offenses.  I was assigned to go to alcohol abuse treatment classes by judge’s thru out my tour of duty and I readily accepted and completed the classes and took the initative to go thru, others, before I left my Command, and out in the civilian World (AA meetings).*  So, in conclusion, I feel that my discharge should be changed from General, to Honorable, because I was a steller Sailor, with the exception of my then alcohol problems at the time while on board the USS John F. Kennedy.  I infact never refused treatment, I completed all assigned Treatment programs and even sought out additional help thru continuing treatments.  I did not have a court Marshell, I never went before any dicenplinary boards, and I was actually less than 3 months away from completing my 4 yr tour of duty, (3 years 9 months).  It has been 1 year and 3 months since my discharge and I haven’t been arrested since I left the navy.  I work 60 hours a week and take care of my daughters.  I would like an upgrade for future employment opportunities, the ones that I currently can’t pursue due to my re-4 code.  Thank you.”

M_D_M_ (Applicant)

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980127 - 981028	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  981029		Date of Discharge:  020729

Length of Service (years, months, days):

	Active:    03  09  01
	Inactive:  00  00  00

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.00 (2)		OTA:  3.25

Military Decorations:  NDSM

Unit/Campaign/Service Awards:  AFEM

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000910:	Arrest and Booking Report:  Member arrested by Jacksonville Sheriff’s Office for driving Under Influence of Alcohol (DUI).

001115:	Medical Entry:  On 14 November 2000, AZAN Madden was interviewed by a counselor as a result of an alcohol related incident.  He did not meet any criteria for Alcohol Abuse or Dependence.  It is recommended that AZAN M_’s  portal of entry into treatment be the Alcohol IMPACT course.

020104:	Arrest and Booking Report:  Member arrested by Jacksonville Sheriff’s Office for driving Under Influence of Alcohol (DUI); Blood Alcohol Level 0.08.

020219:	Alcohol Rehabilitation Failure Memorandum:  AZ3 M_ D_ M_ (Applicant) meets the criteria for separation by reason of alcohol abuse rehabilitation failure.  The first alcohol incident occurred on 10 SEPT 00.  Service member received a D.U.I. in Jacksonville FL with a BAC of .128.  The second alcohol related incident occurred on 17 JUN 01.  Service member received a second D.U.I in Jacksonville FL.  The D.U.I. was not reported to the SVM command.  The third alcohol related incident occurred on 04 JAN 02.  Service member received a third D.U.I. in Jacksonville FL.

020429:	Memorandum from Probation Officer, Salvation Army Misdemeanor Program to Judge of the County Court for probation violation of Applicant.
	Applicant violated the below conditions:

(1)	Report his return from deployment on the USS JOHN F. KENNEDY.
(2)	Kept 0 appointments.  Missed mail-in appointment on 920310.
(3)	Was arrested on 020420 for driving while license suspended.
(4)	Has paid $100 in probation fees.  As of 020424, is in arrears $50.
(5)	Failed to show proof of completing an advanced Alcohol Safety Education course.
(6)	Failed to provide proof of paying $1,405 fines/cost in full.  As of 020424, receipt balance is $1,195.

020712:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

020712:  	Applicant advised of his rights and having consulted 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, to submit a statement, and to a General Court-Martial Convening Authority review.  

020723:	Applicant waived his General Court-Martial Convening Authority review [Extracted from Commanding Officer’s Letter].

020723:	Commanding Officer directed discharge characterization of 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 20020729 under honorable conditions (general) for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board (D).

Issue 1. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  The Applicant’s service record is marred with three D.U.I.’s and Alcohol Rehabilitation failure.  Therefore, relief is denied.  

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant.  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, however, 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, and certification of non-involvement with civil authorities.  

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.  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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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.

C.  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.

D.  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.  

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

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.