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

FOR OFFICIAL USE ONLY

ex-HTFA, USN
Docket No. ND06-00746

Applicant’s Request

The application for discharge review was received on 20060410.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070308.  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 a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: Post service.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Character Reference ltr from L_ B. L_, dated March 13, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990812 - 19991025	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991026		Date of Discharge:  20010830

Length of Service (years, months, days):

	Active:    01  10  05
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  11				AFQT:  50

Highest Rate:  HTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.5 (2)			Behavior:  1.5 (2)		OTA:  1.59

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Sea Service Deployment Ribbon, Navy and Marine Corps Overseas Service Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

010324:	NJP for violation of UCMJ, Article 134:  Drunk and disorderly.
	Award:  Forfeiture of $563.00 per month for 1 month, restriction for 60 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

010330:	Retention Warning:  Advised of deficiency (You are in violation of the UCMJ, Article 134.  This offense involves drunk and disorderly conduct.  This is unacceptable.  If you continue to engage in misconduct, your service record may reflect misconduct due to a pattern of misconduct as described in MILPERSMAN 1910-140.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010501:	NJP for violation of UCMJ, Article 86: Unauthorized absence
Violation of UCMJ, Article 92 (2 specs): Dereliction of duty.
Specification 1: Derelict in performance of duties in that he failed to complete the items assigned on his worklist on 010419.
Specification 2: Derelict in the performance of duties in that he was found sleeping in 4^th deck repair berthing on 1530, 010419. 
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

010612:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Violation of UCMJ, Article 134: Indecent language.
	Award:  Restriction for 30 days.  No indication of appeal in the record.

010807:	NJP for violation of UCMJ, Article 86: Unauthorized absence.  No further information found in service record.  [Extracted from Evaluation and Report and Counseling Record dated 010823.]

010810:	Alcohol Treatment Summary, U.S. Naval Hospital, Yokosuka, Japan: Applicant released from ASAM Level 2.0 Intensive Outpatient Treatment for Alcohol Abuse as a treatment failure for rule violations with recommendation for administrative separation.  Applicant’s morning breathalyzer was positive for alcohol.  Applicant denied using alcohol, but BAC drawn with ETOH 32.40 mg/dL.  Applicant admitted upon receipt of results that he had 6 beers the previous evening and had stopped drinking at approximately 2230.  Applicant counseled numerous time for other rule violations such as repeatedly not doing homework/journalizing assignments, showing upon late for treatment, being disruptive in workshops, cursing and hollering in public spaces despite warnings against such behavior.

010815:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct and alcohol rehabilitation failure.

010815:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010817:	Commanding Officer, USS FRANK CABLE (AS 40), directed discharge with a general (under honorable conditions by reason of misconduct - pattern of misconduct and convenience of the government - alcohol rehabilitation failure.

010830:	DD Form 214: Applicant discharged General (Under Honorable Conditions) by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010830 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

When a member’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as general (under honorable conditions) 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable.  Indeed, the Applicant’s records contain:
•	Nonjudicial punishment proceedings on 20010324 for violation of UCMJ Article 134 Drunk and disorderly;
•	Retention warning entry on 20010330 for deficiencies in performance and conduct concerning violation of UCMJ Article 134;
•	Nonjudicial punishment proceedings on 20010501 for violation of UCMJ Article 86 Unauthorized absence and Article 92 (2 specifications) Dereliction of duty; and
•	Nonjudicial punishment proceedings on 20010612 for violation of UCMJ Article 86 Unauthorized absence and Article 134 Indecent language.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade.  Relief denied.

Equity – Post service: The Applicant contends that he has “been sober for eight months and is trying to better himself.”  While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted one character reference for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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