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Docket No. ND04-00907

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

ex-PNSA, USN
Docket No. ND04-00907

Applicant’s Request

The application for discharge review was received on 20040512.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050324.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s representative (Veterans of Foreign Wars):

1.  “This issue will superseed  the issue previously submitted.  Equity concerning the reason for discharge.  Post service equity.”

Documentation

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

Applicant’s criminal record check, dated April 19, 2004 (2 pages)
Letter from Office Manager of Addiction Services, dated August 29, 2003
Employment verification, dated January 7, 2004
Letter from Applicant’s father, undated
Character reference, dated January 21, 2004
Letter from Applicant’s brother, dated May 6, 2004
Character reference, dated April 30, 2004
Character reference, dated January 21, 2004
Character reference, dated February 8, 2004
Character reference, dated April 3, 2004
Character reference, dated December 12, 2003
Character reference, dated February 8, 2004
Character reference, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901205 - 910624	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910625		Date of Discharge:  960402

Length of Service (years, months, days):

	Active:    04  09  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (11 months extension)

Education Level:  12			AFQT:  31

Highest Rate:  PN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.48 (5)		Behavior:  3.64 (5)		OTA:  3.64	4.0 evals
Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.33	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM (2), SSDR, NEM, MUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920408:	NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty at or about 0345, 920329, to wit: messenger of the watch, violation of UCMJ, Article 113: Found sleeping on post on 1515, 920318.
	Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

920413:	Retention Warning from USS PELELIU (LHA-5):  Advised of deficiency (Fail to go to appointed place of duty and sleeping on post), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950901:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from morning quarters.
	Award: Forfeiture of $580 per month for 1 month, restriction for 30 days, reduction to E-3.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 960307.]

951012:	Branch Medical Clinic diagnosed Applicant alcohol dependant and recommended Level III treatment.

960229:	Vacate punishment suspended on 950901 due to continued misconduct.
 
960229:	NJP for violation of UCMJ, Article 134: Obtaining false services between 960105-960131.
	Award: Forfeiture of $490 per month for 1 month, reduction to E-2.  No indication of appeal in the record.

960301:	USS PELELIU (LHA 5) notified Applicant of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment with the least favorable characterization as under other than honorable conditions.

960301:	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 and the right submit a statement.

960301:	Applicant’s statement.

960302:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim): PNSA B_’s (Applicant's) performance has steadily declined over the past year to the point of being substandard.  He was awarded CO’s NJP on three separate occasions.  Prior to CO’s NJP he was counseled numerous times concerning his deficiencies and given multiple opportunities to correct them.  In his written statement PNSA B_ (Applicant) blames his chain of command for not sending him to CAAC to solve his alcohol problem, which he states resulted in him going to NJP twice.  However, at this second NJP, I discovered that his chain of command was only notified of an alcohol problem three weeks prior to his committing the offenses.  Within those three weeks he was enrolled and graduated from a PREVENT course which was meant to solve his problem.  Since his 11 September 1995 NJP he has had no further alcohol related incidences.  Furthermore, alcohol abuse is not an acceptable excuse for PNSA B_‘s (Applicant's) failure to accept full responsibility for his actions.  He was referred to the command DAPA and subsequently screened for CAAC Level III.  Due to the operational schedule and a six month back log at the CAAC facility, PNSA B_'s (Applicant's) treatment was scheduled for after the completion of deployment.  PNSA B_ has demonstrated a disregard for Navy rules and regulations which cannot be tolerated.  His actions have proven that he will not conform to standards and is no longer suitable for further Naval Service and that the characterization of service be Other Than Honorable.

960320:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980617:	NDRB documentary record review Docket Number ND97-01219 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960402 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issue 1.  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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 86, 113 and 134 of the UCMJ.  Violations of Article 113 of the UCMJ are considered serious offenses. 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.

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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the Applicant’s post service, the Board was impressed with the Applicant’s sobriety and dedication to higher education.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to be sufficient to mitigate the conduct for which he was discharged.  Relief denied.

The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 113, misbehavior of a sentinel or lookout, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.