Author: CAP
Last saved by: shirley.robertson
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Docket No. ND04-00411

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

ex-ATAN, USN
Docket No. ND04-00411

Applicant’s Request

The application for discharge review was received on 20040112.  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 any  representative on the DD Form 293, but subsequently indicated Veteran of Foreign Wars would serve as his council.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910.  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: GENERAL (UNDER 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.  “This is a request to change my status General with Honorable Conditions to Honorable.  I am requesting this because stated on the Montgomery GI Bill act of 1984 section C. 9 (see attached) it states its disqualifying entitlements.  Stated on my DD 214, is a separation code of JKQ, General with Honorable Conditions.  With these codes I am not able to utilize my college money or complete my education which is the most important thing to me.  In the stipulations it is written that an enlistee should pay $1,500 over the first year from ones pay.  I have completed those payments.  I also have completed more than the time limit of three (3) years served so to gain these benefits.  I meet all stipulations necessary except that of Honorable status.

I am eternally sorry for making a poor choice to drink with AMS3 N_ on board a naval vessel.  Under massive stresses of carrier schedule, I made the weak decision to participate.  Please understand I would ask that you not find me a criminal as my code on the DD 214 states.  I have made a horrible debauchery of my Aviation Electronics career.  My reputation as AT II Final Checker in the Blue Blasters! VFA-34 is who I am!!  (Hopefully your committee will have that feeling from the letters attached, not the criminal code that is listed at the bottom of my DD 214.) In addition to my letters of recognition, I helped my squadron earn the Battle “E” (a very highly sought after achievement), participated in many ribbon worthy conflicts, and received the Admiral M_ award.

I have been an Ocean City Lifeguard, a first responder, a Merchant Mariner, who participated in Desert Shield, an Aviation Electronics technician _2nd class Petty Officer, and an Ambassador of Rugby for the United States in more than 14 different countries.  I have saved over 98 peoples lives and was of 2 sole human beings that kept the G.T.S. C_ (MM Marine Carriers) from sinking off the coast of Oman in 1990.

I feel horrible for removing myself from the well-oiled machine that I was an integral part of, a system that I saw a great future in.  I would like to not venture forth though the rest of my life as a rejection from the Government.  I hope that you understand my solemn words and hear them as sincere.  If necessary, I will appear before the Board to ask for forgiveness and to show that I am an aspiring, a well-behaved, church going civilian with a clean driving record, employed with a great company, UPS as a full time employee.

Two days before this incident on the George Washington aircraft carrier, I had saved a “fuelies” life that had tripped over the rubber of the steam cats on the one row.  The young man fell in front of a jet that was in control by a yellow shirt (Directors of the flight deck) that had put the pilot of the F/A-18 in motion.  There was 2 1/2 feet between he and the moving tire.  I cleared the nose wheel well door and snatched the young man up.  Even though CAG of CVW- 17 was in the next jet, it had gone unreported.  I want your committee to be aware of these facts because this is what I am made of.

In review, as a result of my contributions to the Navy and the MGIB, I would like to ask for a change in my discharged from General with Honorable Conditions to Honorable.  I wish to complete my college education so to become more productive in society.  I have learned many valuable lessons in the past year and hope the Committee sees fit to grant me this request.

Good Day, Fair winds, and Following seas,

M_ C_ J_ (applicant)”

Issue 2.   “The number one issue at hand was that I was told by my Commanding Officer, Commander H_, that I was being discharged for my second alcohol Violation in a four-year enlistment.  I would like to shed some light on the first incident that added to the reason why I, an Aviation Electronic Technician, no longer could be part of the US Government’s crucial personnel.

My first so called alcohol incident, which appears in my documentation as a voluntary act, had taken place in Alaska.  I was asked to volunteer for admission to Impact class due to a suggestion from Master Chief S_ (the new VFA-34 Master Chief).  MC S_ said, that he would brush the incident under the rug, if we took a week off when we got back to attend training for Alcohol class called Impact.
(Attached is the completion of Impact class Document 2.)

In October 1999 (Documented incident), I was awoken because of a scuffle in the hall after some squadron brothers had arrived home from being out at the bar in downtown Elmendorf, Alaska.  AMSIII S_ P_ and numerous other shipmates had been in the hallway carrying on and getting increasingly louder.  AOAn B_ was playing with a pocketknife and had been asked to put it away numerous times by AD3 P_.  The last time he asked, P_ reached out and the young man holding the knife pulled it away from him, opening P_’s hand up down to the tendons.  With a 5-inch gash across his hand, the hallway erupted with screaming and noise.  Another Petty Officer present (knowing that I was a first responder) banged on my door.  I immediately took AD3 P_ to restroom flushed the wound prepared him for travel to the Hospital and called from my room to the duty driver AD1 G_ D_.  I had tended to AMSIII P_ for over the three minutes, over that time there was an airman yelling, “What’s going on.  Someone tell me what’s going on!!“ Over and over again! As I was escorting AMSIII P_ down stairs the airman was blocking the way and insisting to see the wound.  After telling him to move and go to bed I pushed him into his doorway and closed his door.  I proceeded downstairs, saw AMSIII P_ off and then returned to bed (approximately 0345 am).

The following day, I was asked to report to our new Masterchief, MC S_ (his first Detatchment with VFA-34).  I had expected to be commended for a speedy reaction to cleaning up the bloody incident from the night before, on the contrary, faced reprimand for shoving the airman into his room on the way to escort AMSIII P_ down stairs.

MC S_, explained to us that since there had been alcohol consumed that night that this was considered an “Alcohol Incident!” and we, myself and the others present, must volunteer for Alcohol classes when we get back to Oceana, Virginia.  I complied and had completed all classes and attend the three AA meetings that were part of the class.  (See attached documentation 2A.)

As a result of the explained situation, I hope the committee realizes that my first alcohol violation was that of bad situational timing.  I was not intoxicated at any point during the evening.  I was trying to help a hurt comrade, and instead was reprimanded for it.  Because I am a team player, I did not contest the Master Chiefs wishes.  I only regret that this incident would so greatly reflect on my dismissal from the Navy.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

3.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on July 14, 2004 and the following comments are hereby submitted.

We ask for a careful and considerate review be completed on this applicant.  We contend the applicant should have been afforded immediate treatment for alcohol abuse and consideration of the remote duty station he was assigned.  We also ask for consideration to the medals and decorations for the junior rank this applicant has earned.

We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for and Honorable.”

Documentation

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

Copy of DD Form 214
Copy of DD Form 149 dtd 020916
LTR frm BNR dtd 021024, 3 pages
Driver History Record dtd 020321
Ltr frm CO, Addictions Rehabilitation, 991103
Ltr frm NDRB dtd 021113
Patient Registration form, undated
Copy of DDForm 2366 dtd 971009
Memo dtd 981206
60 pages from Applicant’s service record book
Ltr frm LCDR M_D_ dtd 011220
Ltr frm LT M_T, dtd 010721
Ltr frm CWO3 L_ S_, dtd 010928
Ltr frm AMS1 M_K_, dtd 011020
Ltr frm AE1 L_W_, dtd 010627
Ltr frm AME2 C_W_, dtd 010801
Ltr frm AE2 M_H_, dtd 010711
Ltr frm AME2 W_S_ dtd 010622
Ltr frm J_G_, dtd 010722
Ltr frm J_M_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970526 - 971006	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971007		Date of Discharge:  010105

Length of Service (years, months, days):

	Active:    03 02 28
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, AFEM (2), AFSM, SASM, SSDR, UNM

Days of Unauthorized Absence:  None

*No marks found

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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

991103:	Applicant completed “IMPACT” Program.

000404:	NJP for violation of UCMJ, Article 86 unauthorized absence.  
Award:  Forfeiture of $100 per month for 1 month(s).  No indication of appeal in the record.

000404:	Retention Warning:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001211:	Applicant does meet DSM IV criteria for alcohol abuse.

001215:	NJP for violation of UCMJ, Article 92 (2 specs) failure to obey lawful general order or regulation.  Article 134:  Disorderly conduct, drunkenness.  Award:  Forfeiture of $660 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

001216:	Applicant notified of intended recommendation for General (under honorable conditions) discharge by reason of misconduct due to commission of a serious offense, misconduct due to pattern of misconduct and misconduct due to Alcohol Abuse Rehabilitation Failure.

001216:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010104:	To expedite separation of naval service, member chooses to seek alcohol treatment with the veterans administrative and declines treatment while on active duty.

010105:	CO Strike Fighter Squadron 34 directed the Applicant's General (Under Honorable Conditions) discharge by reason of misconduct due to commission of serious offense.  Commanding Officer’s comments:  [Despite relentless counseling at all level of the command, [Applicant’s] pattern of alcohol abuse has taken a toll on his military and personal life.  Every level of the command has made a persistent effort to provide assistance including Level I treatment at the Addictions Rehabilitation Department, one-on-one counseling with Command DAPA and formal counseling with Counseling and Assistance Center Counselor, NAS Oceania, Virginia Beach, Virginia.]  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded a General (under honorable conditions) discharge on 20010105 for commission of a serious offense (A & 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).

Issue 1.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86, 92  and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Issue 2.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for disobeying a lawful order, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Issue 3.  The applicant completed the IMPACT program on 3 Nov 1999, prior to any of the infractions which formed the basis for his administrative separation.  While the counsel may feel that the Applicant’s abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92., disobey a lawful 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 "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.