Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00333

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

FOR OFFICIAL USE ONLY

 ex-EM3, USN
Docket No. ND06-00333

Applicant’s Request

The application for discharge review was received on 20051222.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061103.  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) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“May intent is to go back to school college and work on my assoc degree.  I would be a great help to me if I could convert my discharge to honorable, to obtain federal and state benefits thru VA.”

Documentation

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

Applicant’s DD Form 214
Order, In the Matter of the Revocation of Driver’s License and Driving Privileges of D_ E. B_ (Applicant), from J_ W_, Secretary of State, State of Illinois, undated
Restricted Driving Permit, State of Illinois, effective September 14, 2004 to September 14, 2005
Secretary of State Alcohol and Drug Evaluation Report Update, dtd October 3, 2005 (4 pgs)
Secretary of State Alcohol and Drug Evaluation Report Update, dtd February 20, 2004 (4 pgs)
February 2004 Evaluation Denial Addendum for D_ B_ (Applicant) from Intercept Programs INC, undated (2 pgs) 
Alcohol and Drug Evaluation Uniform Report from Illinois Department of Human Services Office of Alcoholism and Substance Abuse, dtd September 17, 2003 (7 pgs)
Evaluation Attachment from Intercept Programs INC, undated (3 pgs)
2003 Evaluation Addendum for D_ B_ (Applicant) from Intercept Programs INC, undated (2 pgs) 
DUI Risk Education Certificate of Completion from Illinois Department of Human Services Office of Alcoholism and Substance Abuse, dtd April 15, 1997
Secretary of State Treatment Verification, dtd July 18, 1997 (2 pgs)
Treatment Program Discharge Summary, dtd June 25, 1997

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19860426 - 19860910	COG
	Active:   USN	19860911 - 19900524	HON

Period of Service Under Review:

Date of Enlistment:  19900525		Date of Discharge:  19940512

Length of Service (years, months, days):

	Active:    03  11  18  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  5 

Education Level:  12				AFQT:  32

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (7) 		Behavior:  3.7 (7) 		OTA:  3.80 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  2^nd Battle “E” Ribbon, 2^nd Sea Service Deployment Ribbon, Joint Meritorious Unit Commendation, Meritorious Unit Commendation, Southwest Asia Service Medal with Bronze Star, Good Conduct Medal for period ending 93APR 24.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

900525:	Reenlisted this date for a term of 5 years.

900920:	Applicant arrested for driving under the influence of alcohol, BAC .011.
	[Extracted from NJP dtd 901116 and Drug Abuse Interview, Naval Hospital Great Lakes, Branch Medical Clinic 237, NTC, dtd 901005.]

901005:	Medical entry:  Drug Abuse Interview, Naval Hospital Great Lakes, Branch Medical Clinic 237, NTC: Applicant found not psychologically or physically dependent on ETOH.

901029:	Applicant enrolled in Navy Alcohol and Drug Safety Action Program, University of Arizona.

901102:	Applicant completed the Navy Alcohol and Drug Safety Action Program, University of Arizona with 36 hours of instruction. 

901116:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1: Wrongfully transporting unsealed alcohol beverages.
	Specification 2: Wrongfully refusing to surrender his military ID Card to a police officer of the Great Lakes Police Department.
Violation of UCMJ, Article 111: 900920, operate a passenger vehicle while drunk.
	Award:  Forfeiture of $481.00 pay per month for 1 month, restriction to NTC and extra duty for 45 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

920715:	NJP for violation of UCMJ, Article 134: False pretenses.
Award:  Forfeiture of $468.00 pay per month for 2 months ($250.00 pay per month suspended for 2 months).  No indication of appeal in the record.

921102:	NJP for violation of UCMJ, Article 86: Unauthorized absence, UA from 0001, 921016 to 0700, 921016.
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction to the ship for 7 days, reduction to E-4 (suspended for 4 months).  No indication of appeal in the record.

931031:	Applicant arrested by Kingsland Police Department for driving under the influence of alcohol, with BAC of .09, driving without a license, and driving too fast for conditions.
	[Extracted from Civil Arrest Disposition Report, dtd 940112.]

931207:	Director, Counseling and Assistance Center, Kings Bay advised Commanding Officer, Naval Submarine Base, Kings Bay of the results of the Applicant’s evaluation:  Applicant is not dependent on alcohol, but an alcohol abuser as evidenced by his recurring use which interferes with his safety.  Recommended for Level II outpatient treatment.  Director’s comments:  Applicant amenability to treatment is questionable because it appears he is unwilling to confront his alcohol use and associated problems.  With this recommendation, his prognosis for further abuse is guarded and his potential for further productive military service appears fair.

931209:	Medical entry:  Medical Department, Naval Submarine Base, Kings Bay, GA, (Medical Officer’s name illegible):  Applicant is not dependant on alcohol and is amenable to rehabilitation.  Recommended disposition:  Level II Counseling and Assistance Center Programs.

931228:	Civil Conviction:  Kingsland Municipal Court for driving under the influence (.09%) - Second Offense; no driver’s license; and driving to fast for conditions.
Sentence:  Found guilty of all three charges.  Fine of $815.00 for the driving under the influence charge; a fine of $90.00 for the driver’s license charge; and a fine of $90.00 for the driving too fast for conditions charge.

940127:	NJP for violation of UCMJ, Article 121: Larceny of a CD changer from Navy Exchange, on or about 931220.
Award:  Forfeiture of $600.00 pay per month for 1 month, reduction to E-4, extra duty for 30 days, oral admonition.

940202:	Applicant appeals NJP on the grounds that the punishment was disproportionate to the offense.  Requests that reduction and forfeiture be suspended.

940218:	Commander, Submarine Group TEN denies Applicant’s NJP appeal.

940224:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of serious offense - larceny of government property, driving under the influence of alcohol and civil conviction-driving under the influence of alcohol with a characterization of service as under other than honorable conditions.

940228:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

940315:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense - driving under the influence of alcohol;  committed misconduct due to commission of a serious offense – larceny, and committed misconduct due to a civil conviction – driving under the influence of alcohol; that such misconduct warranted separation; and recommended discharge with a general (under honorable conditions).

940404:	Commanding Officer, Naval Submarine Base, Kings Bay recommended to Chief of Naval Personnel (PERS-83) that Applicant be discharged by reason of misconduct commission of serious offense-larceny of government property, driving under the influence of alcohol and civil conviction-driving under the influence of alcohol with a characterization of service as general (under honorable conditions).  Commanding Officer’s comments:  “EM3 B_ (Applicant) is one of the biggest disappointments at this command.  In December of 1993 he had his second incident of discreditable involvement with civilian authorities involving alcohol in this enlistment.  As his work performance was above average, he was given the opportunity to rehabilitate himself and was scheduled for Level II treatment.  He repaid this opportunity less than one month later by stealing a Compact Disk Changer from the Navy Exchange.  His lack of accountability for this action clearly indicates that he has lost all potential for further useful Naval service, and I concur with the Administrative Board’s recommendation for separation.  Given the offenses that he was found to have committed, EM3 B_ should feel extremely fortunate that the recommended characterization of his discharge is General, under honorable conditions.”

940422:	BUPERS directed the Applicant's discharge by reason of misconduct due to commission of a serious offense with a characterization of service as general (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940512 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  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).  

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 4 nonjudicial punishment proceedings for violations of Articles 86, 92, 111, 121 and 134 of the UCMJ and civil convictions for driving under the influence of alcohol, driving without a valid license and driving too fast for conditions.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  Violations of Article 92, 111, 121 and 134 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 Naval 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.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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, in addition to the type of credible evidence of a substance free lifestyle contained in the application, include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, Drunken or reckless operation of vehicle, aircraft, or vessel and Article 121, Larceny and wrongful appropriation.

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

D.  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