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Docket No. ND04-00881

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

 ex-MTSN, USN
Docket No. ND04-00881

Applicant’s Request

The application for discharge review was received on 20040506.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103.  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:

“ISSUE 1: WHILE ON ACTIVE DUTY, I CONSISTANTLY RECEIVED EXCELLENT EVALUATIONS -INDICATING THAT I PERFORMED MY MISSILE TECHNICIAN DUTIES IN A PROFESSIONAL MANNER.

ISSUE 2:  I RECEIVED A CITATION FOR PROFESSIONAL ACHIEVEMENT IN THE SUPERIOR PERFORMANCE OF MY DUTIES WHILE SERVING AS A MEMBER OF THE MISSILE DIVISION ONBOARD THE USS KENTUCKY (SSBN 737) FROM JANUARY 2002 TO MARCH 2002.  THIS IS FURTHER EVIDENCE AS TO PROFESSIONALISM THAT I EXHIBITED IN PERFORMING MY DUTIES.

ISSUE 3:  I BELIEVE THAT THE DECISION TO SEPARATE ME WITH A GENERAL (UNDER HONORABLE CONDITIONS) DISCHARGE, WAS UNDULY HARSH. THERE WERE SOME MINOR INCIDENTS OF MISCONDUCT DURING MY ENLISTMENT, BUT, I DON’T BELIEVE THEY WARRANTED A GENERAL DISCHARGE.

ISSUE 4:  I PAID INTO THE MONTGOMERY GI BILL AND NEED A FULLY HONORABLE DISCHARGE TO RECEIVE BENEFITS.  I WILL BE ATTENDING COLLEGE THIS FALL AND DESPERATELY NEED GI BILL BENEFITS FOR EDUCATION EXPENSES.  A SUCCESSFUL FUTURE DEPENDS ON MY EDUCATION AND WITHOUT GI BILL BENEFITS I WILL NOT BE ABLE TO AFFORD IT.”

Documentation

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

Letter to Applicant from Director, Academic Center for Excellence, Hartwick, dated July 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990212 - 990314	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990315		Date of Discharge:  030523

Length of Service (years, months, days):

	Active:    04  02  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  93

Highest Rate:  MT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.34 (6)		Behavior:  2.84 (6)		OTA:  2.92

Military Decorations:  None

Unit/Campaign/Service Awards:  STDPP (4), NDSM, GCM, SSDR, NEPM, NERM

Days of Unauthorized Absence:  None

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:

991006:	NJP for violation of UCMJ, Article 86: Absent from barracks on 0730, 990924 to 0730, 990926.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, oral admonition.  No indication of appeal in the record.

991006:	Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011018:	Applicant completed Early Intervention treatment (Impact).

011203:	Drug and Alcohol Abuse Report: Alcohol abuse on 011202, ashore off duty.  Commanding Officer recommends retention.

011206:	Counseling and Assistance Center Evaluation: Applicant meets DSM-IV criteria for alcohol abuse.  Recommend Outpatient treatment.

020124:	Retention Warning: You are being retained in the Naval service, despite your failure to successfully complete alcohol rehabilitation due to your alcohol dependency/abuse.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

020205:	Applicant assigned to Outpatient treatment.

020220:	Applicant discharged from Addictions Rehabilitation Center outpatient treatment.  Discharge diagnosis: Alcohol abuse.

021219:	NJP for violation of UCMJ, Article 134: Obstructing justice, violation of UCMJ, Article 111: Drunk driving.
	Award: Forfeiture of $832 per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.  Changed EAOS to 030316.

030124:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

030124:	Applicant advised of 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.

030320:	Commanding Officer recommended discharge general (under honorable conditions) by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

030423:	Commander, Submarine Group 9 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 20030523 with a general (under honorable conditions) for misconduct due to commission of a serious offense (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).

Issues 1-3:  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.  An Under Other Than Honorable Conditions 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 award of nonjudicial punishment (NJP) on two occasions for violations of Articles 86, 111, 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.

Issue 4:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

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’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, no relief will be granted.

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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge at that time.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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 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

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.