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NAVY | DRB | 1997_Navy | ND97-01328
Original file (ND97-01328.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND97-01328


 Applicant’s Request
The application for discharge review, received 970828, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary discharge review and listed no representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980908. The NDRB determined that the discharge equitably reflects the quality of service rendered. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3420185.
THIS SHELL IS FOR “Misconduct - Frequent involvement of a discreditable nature with civil or military authorities”. THE FINDING FOR MISCONDUCT (3420185) IS EFFECTIVE 820519 - 830107. SPN CODE HKA THE SPN CODE IS EFFECTIVE 790913 - 830209. A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL)”


PART I - APPLICANT’S ISSUES (verbatim)


 1. I have reason to believe I did receive an upgrade, but I can’t be certain for sure.

2. I served my country honorably in my opinion not only my first, but second enlistment. I just fell into trouble the second time around. I was almost a 4.0 sailor on board. But out on liberty my attitude changed after a few drinks and the command would not tolerate my behavior. I have all my quarterly marks to prove I was an outstanding 4.0 sailor in the rate of Boatswains Mate Petty Office 3 rd Class.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  USN                                 740726 - 770729  HON
         Inactive:        USNR                                770730 - 800108  HON

 Period of Service Under Review :
Date of Enlistment: 800109                        Date of Discharge: 821101

 Length of Service (years, months, days):

         Active: 02 09 22
         Inactive: None
        
Age at Entry: 25                                   Years Contracted: 4

 Education Level: 11                                 AFQT: 42

 NEC: BM-0000                              Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (4)             Behavior: 3.00 (4)                OTA: 3.42

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM, AFEM, and B“E”R

Nonjudicial Punishment(s): 3              Court(s)-Martial: 1 (SCM)

 Days of Unauthorized Absence: 7

 Character, Narrative Reason, and Authority of Discharge:
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3420185.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

 800109:  Re-enlisted for four years at the Armed Forces Entrance Station at Fort Hamilton, New York City, New York for guaranteed assignment to USS DULUTH (LPD-6).
800205:  Joined USS DULUTH (LPD-6) in San Diego, CA.

800529:  Summary Court-Martial (SCM) for violation of UCMJ, Article 128 (3 specs): Assault (unspecified) and Article 116 (2 specs): Breach of the peace (unspecified).
         Sentenced: Confinement at hard labor for 30 days, forfeiture of $333 for
         one month, and reduction to E-2.
 CA (800529) Commanding Officer (CO), USS DULUTH approved and ordered executed.
800529:  Joined Naval Station (NAVSTA) Long Beach Brig for confinement.

800620:  Released from confinement (21 days); returned to full duty.

810213:  NJP for violation of UCMJ, Article 86: Unauthorized absence (UA) on 880212 (unspecified).
         Award: Forfeiture of $150 for one month, and restriction for 30 days. Forfeiture and restriction suspended 6 months. There was no indication of an appeal in the record.
        
810213:  Retention Warning: Advised of deficiencies (frequent involvement of a discreditable nature with military/civil authorities); advised of the consequences of further deficiencies with military or civil authorities, and issued a discharge warning. Receipt acknowledged.

810213:  Retention Warning: Advised of deficiencies (alcohol abuse); advised of the consequences of further deficiencies with military or civil authorities, and issued a discharge warning. Receipt acknowledged.

811028:  To UA as a result of the courtesy turn-over of the applicant to the Marshall of Municipal Courts, San Diego County, San Diego, CA at 1549 for civil charges.
811104:  Returned to military jurisdiction at 1420 (7 days/S). UA period considered lost time.

811106:  USS DULUTH requested permission to transfer applicant to NAVSTA San Diego to resolve pending civil action and further requested that applicant be returned to ship upon completion of civil action.

811111:  Joined Personnel Support Detachment, San Diego, CA, transient status.

811118:  NMPC authorizes TEMDU transfer of member to NAVSTA San Diego for further disposition.

811218:  NAVSTA San Diego, CA, advised the Chief of Naval Personnel (CHNAVPERS) that the applicant appeared in the Municipal Court of California, County of San Diego, South Bay Judicial District, Chula Vista, CA on 811210 for violation of the State of Calif Penal Code Sect 245(A) – assault with deadly weapon or force likely to produce great bodily injury and was sentenced as follows: Serve 16 days in custody with the Sheriff of San Diego County with credit for 5 days previously served and serve five (5) years formal probation. Pay a fine of $2,400.00 at a rate of $200.00 per month and pay restitution of $128. Fine and restitution to be paid at the combined rate of $200.00 per month commencing 820701. Applicant retained onboard NAVSTA San Diego pending disposition instructions from CHNAVPERS.

811225:  CHNAVPERS directed that the applicant be offered an opportunity to make a statement on his behalf, and in the event that he declines, make a Page 13 entry to that effect.

811230:  Applicant objected to separation and desired to submit a written statement. “I have been advised that I am being considered for discharge by reason of COG by Chief of Naval personnel and offer the following statement in rebuttal. I originally enlisted in the Navy on 26 July 1974. Served out my enlistment honorably and with great pride. The USS DULUTH was very good to me then and still is today. I reenlisted on 4 Jan 1980 for another 4 years and requested to get stationed back on DULUTH. So all of my Navy time has been spent on DULUTH. I enjoy working hard, hand in hand with other sailors of the Boatswain Mate rating. The Amphibious Navy has taught me plenty. My command has requested for my return to DULUTH upon the resolution of my civil charge assault (245A). This is not a habit of mine. It was just one of these incidents at the time I felt was right. My alcohol consumption has stopped since. I’m on anti-buse and I’m still very much military orientated. I want to express how much I want to remain in our Navy. It has been good to me through my two enlistments. All of my superiors like me and the feeling is mutual. I have no enemys on board DULUTH or any other ship or station, as for civilians, I get along very well with them. All of my quarterly marks have been 3.6 to 4.0s, very good recommendations for advancement & retention. I’ve made Sailor of the Month onboard DULUTH. I really cannot stress how much I wish to remain in today’s navy. Sir please give me another chance to make up for my mistake. In my opinion I am one of a few Sailors left in today’s Navy that wants to make a career and serve out longer than 20 years if the navy would allow me. Thank you for taking out time in reading my letter to you. I hope you will take me into your consideration and let me belong in the United States Navy.”

811231:  CO recommended member be considered for discharge by reason of Convenience of the Government because of involvement with civil authorities as evidenced by the applicant’s violation of the State of California Penal Code Section 245(a) – Assault with a deadly weapon or force likely to produce great bodily harm/injury.

811231:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make a statement. Member objected to this discharged. Receipt acknowledged.

820103:  CO, USS DULUTH comments/recommendation: BM3 L_ has been a superlative petty officer in professional performance. He can be counted on to carry out any task in a professional manner, readily working extra hours. His knowledge of the Boatswains Mate rating is excellent. Petty Officer L_’s performance has suffered from his irresponsible behavior on liberty with alcohol being a frequent factor. Petty officer L_ has completed a formal alcohol program and was a participant in local alcohol counseling on board. His commitment to self-control has been sincere but totally unsuccessful. Due to his repeated alcohol related offenses after numerous warnings it is regretfully recommended BM3 L_ be separated from the naval service.

820112:  CHNAVPERS directed that the applicant be referred for a medical officer opinion regarding alcohol dependency and if member is dependent, provide a recommendation regarding desirability of transferring applicant to Alcohol Rehabilitation Center (ARC).
820127:  NAVSTA San Diego reported that applicant had been diagnosed as alcohol dependent and recommended for ARC on 810218. The applicant never received treatment or any re-evaluation for a second opinion. Second medical evaluation was done on 820106 at the Branch Medical Clinic, NAVSTA San Diego, CA. The applicant was found to be alcohol dependent and referred to ARC.
820212:  NAVSTA San Diego, CA advised CHNAVPERS of applicant’s status and that liaison with applicant’s civilian attorney indicated that during the applicant’s civil trial in California Superior Court on 811210 that no efforts to date have been made by the State of New York to arrange an extradition hearing and that in all probability the civil charge in New York had been dropped due to the time lapse since member was arrested by New York authorities in mid-November 1980.

820402:  NAVSTA San Diego, CA, requested from NAVREGMEDCEN San Diego, CA, applicant be provided ARC treatment at Jacksonville, FL.       

820403:  BUPERS requested NAVSTA San Diego advise upon member’s completion of ARC treatment.

820419:  Joined Naval Alcohol Rehabilitation Center (NARC) Jacksonville, FL (TAD) for inpatient treatment.

820520:  NARC Jacksonville, FL advises NMPC and NAVSTA San Diego that applicant due to complete treatment 31May82 and that BM3 L_’s anti-social behavior appears to have been a direct result of alcohol abuse, responding well to treatment and recommended that he not be processed for separation.

820528:  NARC Jacksonville, FL notified applicant that his treatment was completed. “Should you return to drinking, which affects your job performance, interpersonal relationships or our emotional or physical well being, it is recommended that you be processed for separation from the U.S. Navy in accordance with BUPERSMAN 3420180 and OPNAVINST 6330.1, and not returned to rehabilitation.”

820529:  Joined Naval Station (NAVSTA) San Diego, CA, transient status.

820611:  CO, NAVSTA San Diego, CA advised Chief of Naval Personnel (CHNAVPERS) that applicant was due to complete ARC treatment on 820531, his anti-social behavior appeared to have been a direct result of alcohol abuse, and he was responding well to treatment. CO recommended that applicant not be processed for separation.
820625:  CHNAVPERS concurred and directed that the applicant be warned that further misconduct my result not only in disciplinary action but also in processing for administrative discharge.

820630:  Retention Warning: “You are hereby advised that if no improvement in your current conduct is forthcoming that you are subject to being administratively separated from the Naval Service in accordance with procedures contained in the MILPERSMAN Article 3420185, and that such processing by reason of misconduct may result in either another than honorable discharge or general discharge.” Receipt acknowledged.

820730:  Joined USS DULUTH (LPD-6) in San Diego, CA.
820907:  NJP for violation of UCMJ, Article 92: Wrongful use of controlled substance, to wit: Barbiturates.
         Award: Forfeiture of $366 per month for two months, restriction and extra duty for 45 days, and reduction to E-3. There was no indication of an appeal in the record.
821006:  NJP for violation of UCMJ, Article 128: Assault (unspecified) on 821005.
         Award: Forfeiture of $321 for one month, and reduction to
E-2. There was no indication of an appeal in the record.

 821007:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct because of frequent involvement of a discreditable nature with civil or military authorities as evidenced by three NJPs, one SCM and one civil conviction during this enlistment.
821012:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. Receipt acknowledged.
821015:  USS DULUTH Drug Disposition Recommendation – Medical officer’s
                  evaluation – no drug dependent. Written warning has been made a part
 of member’s service record and recommend process for administrative separation.
821016:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of frequent involvement of a discreditable nature with civil or military authorities. Commanding officer’s verbatim comments: Since reporting aboard this command in February of 1980 Seaman Apprentice L_ has been a continual administrative burden. He has appeared at Captain’s Mast on no fewer than three occasions. Has had one summary court-martial and one civil conviction. Seaman Apprentice L_ has compiled three assaults, one unauthorized absence and one drug offense. This sailor has been extensively counseled by all levels of the chain of command, to no avail. He was granted the opportunity to attend courses at alcohol rehab center at NAS Jacksonville, FL and was successfully graduated on 28MAY82. Despite the intense interest repeatedly demonstrated by the command in his rehabilitation, Seaman Apprentice L_ has continued to manifest a pattern of misconduct which has clearly made him a liability to this command and the Navy. It is, however, strongly recommended that, due to his excellent work-record, he be discharged from the Navy with a General, vice Other Than Honorable Discharge by reason of misconduct. Copies of Letter of Notification and SNM’s Statement of Awareness and all supporting documentation are entered in mbr’s service record IAW Para 8B of Encl (1) to [NMPCINST 1910.1A].

821022:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to frequent involvement of a discreditable nature with civil or military authorities.

821026:  USS DULUTH requested to hold discharge action in abeyance because he was placed in medical hold (not limdu) status onboard ship due to a broken little finger right hand held together with pins. Applicant to return to NRMC San Diego in three weeks to have the three pins removed and for re-evaluation.

821101:  Applicant “found not qualified for discharge due to continued orthopedic care and bronelicospasms.” Applicant “. . . desired to be separated from the Naval Service on 01 November 82. I understand that I will not be eligible for further follow-up studies or treatment at an Armed Forces Medical Facility, that I will be ineligible for disability benefits under law administered by the Navy and that any further treatment and/or benefits will be under the jurisdiction of the Veterans Administration.”

821101:  Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern - frequent involvement of a discreditable nature with civil or military authorities; authority Naval Military Personnel Manual, Article 3420185.

821102:  USS DULUTH advises NMPC that applicant signed Page 13, waiving medical responsibilities and was processed for discharge this date.
RECORDER’S NOTE:

 1 The source for all entries is the service record (includes medical/dental records) unless otherwise noted. The applicant’s medical/dental records were not available for review.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW
A. Navy Military Personnel Manual, (NAVPERS 15560, Change 4/82, effective 820519 until 830107, Change 10/82 (CHAPTER 36), Article 3420185, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR DISCHARGE BY REASON OF MISCONDUCT, states:

1. Members may be separated by reason of misconduct with a discharge under other than honorable conditions unless the particular circumstances in a given case warrant a General or an Honorable discharge. While a member may be an outstanding performer, with an overall good record, the reason for considering the individual for administrative discharge is/are the governing factor(s) in determining the characterization of the discharge to be issued, MILPERSMAN Article 3420180, subparagraph 3b, delineates those types of cases for which a discharge under other than honorable conditions is normally appropriate. (Note that if member’s case is presented to an Administrative Discharge Board, Chief of Naval Personnel cannot direct an other than honorable discharge unless the Board recommends issuance of an other than honorable discharge.) A discharge by reason of misconduct may be executed only when directed or authorized by the Chief of Naval Personnel. Members may be recommended for discharge by reason of misconduct for: (Note that dual or multiple reasons for processing in accordance with this article should be rendered when appropriate, e.g., due to frequent involvement of a discreditable nature with military authorities and drug abuse. Ensure member’s statement of awareness lists one or more of the reasons for misconduct processing outlined in this article.)

a. Frequent involvement of a discreditable nature with civil and/or military authorities as evidenced by civil convictions(s) [sic] (misdemeanor(s) and/or punishment(s)) under the UCMJ subsequent to a written counseling/warning entry in the member’s service record.

(1) Definition: Frequent involvement of a discreditable nature with civil and/or military authorities is:

(a) A minimum of three or more minor civil convictions (misdemeanors), or three or more punishments under the UCMJ or combination thereof within the past year; or

(b) Two courts-martial within the past year; or

(c) Five or more minor civil convictions (misdemeanors), or five or more punishments under the UCMJ or combinations thereof within the past two years; or

(d) Three courts-martial within the past two years.

(2) Qualifying time period: To determine the past year or the past two year period for eligibility, the date of the letter of notification to the member will be the basis for figuring the qualifying time period. When the latest punishment under the UCMJ is for unauthorized absence, the time period may start back from the first day of that unauthorized absence and extend forward to include the punishment for that offense.

(3) Counseling requirement: Members must be counseled concerning their deficiencies and afforded a reasonable opportunity to overcome them. Verification of this counseling requirement must be indicated by a written entry that the member was so counseled/warned regarding his or her behavior, or a witnessed statement that the member refused to sign or acknowledge the entry. Only one written counseling/warning entry is required.

(a) The counseling/warning entry may have been executed by any command to which the member was assigned in any status other than TEMADD during his or her current enlistment.

(b) Violation of the counseling/warning entry will be evidenced by subsequent minor civil conviction(s) (misdemeanor(s)) and/or punishment(s) under the UCMJ and will justify the processing for administrative discharge in accordance with the provisions of this article provided at least one conviction/punishment being considered has been received while at the current command. (Note that separation activities are exempt from the punishment received at current command requirement.)

(c) Waivers of the written counseling/warning entry for those members enlisted prior to FY-80 will be authorized if the commanding officer processing the member certifies that at least one counseling session by his or her command has been violated by the member as evidenced by subsequent civil conviction (misdemeanor) and/or punishment under the UCMJ.

(d) An example of a warning format is included in MILPERSMAN 3420175.3d(3).

(4) Dual Processing: When two or more total punishments under the UCMJ or civil convictions (misdemeanors) or combinations thereof are drug related, dual processing to include drug abuse is recommended. Dual processing may include other reasons of misconduct and/or homosexuality when circumstances warrant.

b. An established pattern of shirking, i.e., the deliberate evasion of duty.

c. An established pattern showing dishonorable failure to pay just debts. Include financial statement with case in accordance with MILPERSMAN Article 6210140.14.

d. An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees or judgments of a civil court concerning support of dependents. Include copies of court order(s), judgments, etc.

e. Sexual perversion, including but not limited to (1) lewd and lascivious acts; (2) sodomy, (3) indecent exposure, (4) indecent acts with or assault upon a child, or (5) other indecent acts or offenses. Immediate processing for discharge is mandatory, unless the nature of the offense constitutes an incestuous relations. In those situations, treatment in the Family Advocacy Program is appropriate. The ultimate decision to require administrative processing will be determined by NMPC upon review of letter of notification by the parent command. Such letter notification is mandatory and is to be submitted to NMPC 63. It shall include, as a minimum, a psychiatric evaluation obtained via the nearest medical facility, the results of a screening interview with a family advocacy representative in an [sic] naval regional medical center (if feasible), the results of an naval investigative service investigation (if circumstances warrant), the results of a screening for possible alcohol and/or drug abuse conducted by a qualified drug alcohol abuse counselor (SNEC 9522) or alcoholism treatment specialist (SNEC 9519) at the nearest counseling and assistance center, the status of legal action against the member, and the commanding officer’s recommendation regarding treatment as well as the member’s potential for further useful service to the Navy. Commands should ensure that, if possible, adequate treatment is made available to the victim, as well. Treatment in the Family advocacy Program will normally be a minimum of one year, during which time the member will be ineligible for reassignment without NMPC-63 concurrence. If there is a reoccurrence of incest during or subsequent to treatment, discharge processing is mandatory.

f. Drug abuse, when supported by evidence not attributed to (a) urinalysis administered for valid medical purposes (Military rules of evidence 312(f)) when such tests are administered: (1) to determine if a member is fit for duty, (2) to ascertain a requirement for counseling, treatment or rehabilitation, or (3) in conjunction with participation in a Navy Drug Treatment and Rehabilitation Program; or (b) member volunteered and accepted for the self referral program for treatment.

(1) Definition: For the purposes of this article drug abuse is defined as the illegal, wrongful, or improper use, possession, sale, transfer or introduction on a military installation of any narcotic substance, intoxicating inhaled substance, marijuana, or controlled substance, as established pursuant to 21 U.S.C. 812, schedule of controlled substance - establishment.

(2) Disposition of incidents of drug abuse:

(a) A member involved in his or her first drug abuse incident shall b[e] disciplined as appropriate and provided counseling. If retention is not recommended, member can be processed for separation for misconduct (unless a discharge has been awarded by a court-martial and has not been disapproved).

(b) A member involved in a second drug abuse incident shall be disciplined as appropriate and processed for separation for misconduct, unless the commanding officer has determined that the member exhibits exceptional potential for further useful service. If retention is recommended, the commanding officer shall inform Commander, Naval Military Personnel Command (NMPC-832) of the decision not to process.

(c) A member identified as having three or more incidents of drug abuse shall be referred to trial by court-martial, where appropriate, or processed for separation for misconduct (unless a discharge has been awarded by a court-martial and has not been disapproved). If retention is recommended instead of processing for separation, a waiver must be requested from the Chief of Naval Personnel.

(3) If the drug abuse involves possession and/or transfer of an amount of drugs in excess of an amount considered for personal use and/or sale or trafficking, processing is mandatory.

(4) Members who are being processed for administrative discharge due to drug abuse and are eligible for processing for other reasons should be dual processed.

g. Conviction by civil authorities (foreign or domestic) or action taken which is tantamount to a finding of guilty. If retention in the Navy, vice processing for discharge is deemed appropriate, a detailed report of the circumstances together with comment and recommendation of the commanding officer shall be submitted to the Chief of Naval Personnel (NMPC 83). Upon receipt of a letter report, CHNAVPERS will either issue a warning concerning further misconduct, direct processing for possible discharge or other action that is deemed appropriate. When a member has been convicted by civil authorities for offenses involving drug abuse, a disposition recommendation report shall be submitted as prescribed elsewhere in this Manual. A member may be processed even though an appeal is pending or is subsequently filed for the civil conviction. Conditions under this subparagraph include an offense that:

(1) Authorizes imposing a maximum penalty under the Uniform Code of Military Justice of death or confinement for one year or more.

(2) Involves moral turpitude. Such offenses include:

(a) Conviction by a Federal civilian court of an offense punishable under the United States Code by confinement for one year or more whether or not that punishment was actually adjudged.

(b) Conviction by any other court of an offense similar to an offense made punishable by the United States Code as a felony or of an offense characterized by the jurisdiction in question as a felony or as an offense of comparable gravity.

(c) Conviction of any offense involving fraud, deceit, larceny, wrongful appropriation, or the making of a false statement.

(3) Involves sexual perversion.

(4) Involves homosexuality - dual processing to include by reason of homosexuality in accordance with Article 3420189 of this Manual is mandatory.

(5) Involves drug abuse (illegal, wrongful or improper use, possession, sale, transfer or introduction).

(6) Involves case wherein the offender is adjudged a juvenile delinquent, wayward minor, or youthful offender or is placed on probation or punished in any way as the result of any offenses as listed above. If the offense is not listed in the MCM Table of Maximum Punishments or is not closely related to an offense listed therein, the maximum punishment authorized by the U.S. Code or the District of Columbia Code, whichever is lesser, applies.

h. Procurement of a fraudulent enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which if known at the time might have resulted in rejection. If fraud is based on sale/trafficking of drugs or pre-service homosexuality, processing is mandatory.

i. Prolonged unauthorized absence. When unauthorized continuous absence of one year or more has been established.

2. Members who are detained by civil authority or who are being recommended for discharge will be retained at their own command pending instructions from the Chief of Naval Personnel unless a waiver is requested from the Chief of Naval Personnel. Such waivers will be granted only in extreme situations. A request for a waiver under this article must identify the formal reason for misconduct processing including a brief summary of the circumstances and the reason a transfer is required.

3. The member must be afforded the opportunity to request to consult with legal counsel (a lawyer within the meaning of article 27 (b) (1), UCMJ)) prior to electing his or her rights in the execution of the statement of awareness. If the member desires legal counseling, such counseling must be afforded the member prior to execution of the statement of awareness. If the member does not desire to consult with legal counsel prior to executing the statement of awareness, no further action regarding legal counsel in conjunction with the provisions of this paragraph is required.

4. In each case processed under this article, the following is required:

a. The member will be advised that if he or she elects an administrative discharge board, nonjudicial punishments, courts-martial convictions and/or involvement(s) of a discreditable nature with civil authorities (when member is processed for this reason) occurring up to the announcement of the board’s findings and recommendations may be considered by the board, when appropriate, in determining retention, separation, and discharge characterization, if discharge is recommended. If a member does not elect a board he or she will be advised punishments, convictions and/or civil involvement(s) as outlined above prior to the date of the statement of awareness and, if any, subsequent to the date of the statement of awareness may be considered, when appropriate, by the separation authority in making the determination as to retention or separation and discharge characterization, if discharge is awarded. If the member’s subsequent misconduct is not within the context of the acknowledged reason(s) indicated for processing, reprocessing may be required.

b. If the member is under military control, advise the member in writing of the specific reason(s) for the proposed action and of the right to consult with counsel before making a decision to request or waive the following rights:

(1) To be represented by counsel.

(2) To present his or her case before an administrative discharge board.

(3) To submit statements in his or her behalf.

(4) To waive the above rights.

c. A member unable to appear before an administrative discharge board by reason of civil confinement or a reserve member not on active duty shall be advised by registered mail or certified mail, return receipt requested, of the specific reason(s) for the proposed action which could result in a discharge under other than honorable conditions by reason of misconduct. The member must indicate whether or not he or she desires to consult with counsel before making a decision to request or waive the following rights:

(1) To have his or her case considered by an administrative discharge board.

(2) To request appointment of a military counsel to represent him or her and in his or her absence present the case before an administrative discharge board.

(3) To submit statements in his or her behalf.

(4) To waive the foregoing rights, either in writing or by falling to reply to the letter of notification within 45 days of the date of the returned receipt of the registered/certified letter restricted delivery of notification signed by the member (not acceptable unless signed by the member).

d. If the member waives the administrative discharge board, forward a letter of transmittal to the chief of Naval Personnel (NMPC 83) containing the following information:

(1) Principal reason for processing. Indicate one or more reason(s) as outlined in this article.

(2) if civil conviction, include:

(a) Circumstances of offense(s). (Include all facts of the offense and surrounding circumstances in sufficient detail to clarify the reason for the arrest).

(b) Action of civil authorities. (Include citation of civil statue(s) violated, charge(s) on which tried and convicted, court in which convicted, sentence of court, maximum punishment which could have been imposed for such a conviction under the UCMJ, and status of appeal, if any.)

(3) Basic record data, date of current enlistment: (fill-in) for (fill-in) years; EAOS: (fill-in); marital status: (fill-in); dependents: (fill-in); months on board: (fill-in); age: (fill-in); GCT: (fill-in); years of education: (fill-in); total service: active (fill-in numbers of years and months), inactive - (fill-in number of years and months) (including reenlistment status).

(4) Summary of military offenses: List in chronological order all disciplinary actions during current enlistment. Include dates of nonjudicial punishments, and/or courts-martial by type, description of offense(s), nonjudicial punishment or sentence as approved and approval date, and all violations of regulations during current confinement with action taken thereon.

(5) Comment and recommendation of the commanding officer: The commanding officer’s comments should include information with regard to the counseling requirement for cases processed by reason of frequent involvement of a discreditable nature with civil and/or military authorities. If discharge is recommended, the commanding officer shall make a specific recommendation as to the type and reason for discharge.

(6) Enclosures to the letter:

(a) Copy of the letter notifying the member of the reason(s) for the processing and informing him or her of his or her rights.

(b) Statement of awareness and request for or waiver of rights. This shall include the following signed statement:

“I understand that I am being considered for an administrative discharge which could be under conditions other than honorable due to misconduct because of (list one or more of the reasons outlined in this article) and that I am subject to and may be separated with a discharge under other than honorable conditions .”

“I understand that if such discharge is under other than honorable conditions, it may deprive me of virtually all veterans’ benefits based upon my current period of active service, and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing.”

“Prior to declaring my intentions, I was afforded an opportunity to consult with counsel and I: (check as appropriate)

( ) did consult counsel

( ) did not desire to consult with counsel

“I also understand that I must elect one or more of the following: (check as appropriate)

( ) to present my case before an administrative discharge board (ADB)

( ) To be represented by counsel

( ) To submit statements in my own behalf either verbally or in writing before an ADB or in writing if ADB not convened

( ) None of the above”

Member must acknowledge one of the following: (check as appropriate)

( ) (A) “I understand that nonjudicial punishments, courts-martial convictions (and/or involvement(s) of a discreditable nature with civil authorities if I have been processed for this reason) occurring prior and subsequent to this statement of awareness may be considered by the separation authority in determining separation authority in determining retention or separation where appropriate, and the characterization of any discharge to be awarded.”

( ) (B) “I understand the administrative discharge board that I have elected may consider, when appropriate, nonjudicial punishments, courts-martial convictions (and/or involvement(s) of a discreditable nature with civil authorities if I have been processed for this reason) occurring up to the announcement of the findings and recommendation of the board, in determining retention or separation and the characterization of any discharge to be awarded. (I understand that if I enter into a memorandum of agreement with my commanding officer, provisions of acknowledgment paragraph (A) apply).”

(c) Statement of subject member, if made.

(d) Copy of Page 9 of the service record with final trait averages.

(e) Copy of Drug Disposition Recommendation Report, if drug abuse is indicated regardless of the reason for processing.

(f) Copy of Page 13 warning, if applicable.

(g) Other available documents such as psychiatric or medical evaluation, subject member’s statement to investigation, etc.

(h) Civil documents such as arrest reports, copies of court record, probation orders, or any other pertinent documents, if applicable.

(i) Administrative Discharge Board proceeding (consisting of the record of proceedings and the report of the ADB), if held. The content of the report of an ADB shall include:

(1) Report of Administrative Discharge Board held on board (activity) on (date) in the case of (rate, name, component, social security number).

(2) Findings of the Board. The board finds that (name) (Brief of findings) relating the member to the allegations. Findings of the Board shall relate to one of the reasons the member was notified he or she was being processed for and as indicated in the article in this Manual on discharge for misconduct).

(3) Recommendation of the board.

(4) Type of Discharge.

(5) Signature of all board members making recommendation. (Name, grade, component).

(6) Dissent, if any. (Explain in detail).

(7) Signature(s) of all dissenting board member(s). (Name, grade, component).

(8) Authentication by senior member.

(9) Legal counsel’s review.

5. The following format for a letter of transmittal is recommended. Modification may be necessary in individual cases. SNM’s full name, rate and SSN is to be indicated at the top right-hand corner of each page of the case.

From:    Commanding Officer
To:      Chief of Naval Personnel (Attn: NMPC 83)

 Subj:    (Rate, name of member, component, SSN); Recommendation for discharge by reason(s) of misconduct due to
Encl:    (1) Copy of letter of notification
         (2) Signed statement of awareness and request for or waiver of rights
          (3) Proceedings of Administrative Discharge Board or Memorandum of Agreement (if applicable)
          (4) Statement of member, if made
         (5) Copy of Page 9 with final trait averages
          (6) Information concerning arrest, conviction, or disposition (include civil document if available)
         (7) Drug Disposition, Neuropsychiatric Evaluation, Member’s Statement, Financial Statement, and other available documents as required
         (8) Copy of return receipt of registered mail or certified mail (as appropriate for member in civil confinement and/or a reserve member).
1. Pursuant to Article 3420185 of the Naval Military Personnel Manual, the following information is submitted:

a. Reason for processing (one or more reasons).

b. Basis record data: date of current enlistment: (fill-in) for (fill-in) years; EAOS: (fill-in); marital status: (fill-in); dependents: (fill-in); months on board: (fill-in); age: (fill-in); GCT: (fill-in); years of education: (fill-in); total service: active: (fill-in numbers of years and months), inactive - (fill-in number of years and months) (including reenlistment status).

c. Involvement with civil authorities.

d. Summary of military offense(s). Include complete detailed summary of UCMJ violations, i.e., judicial action, charges and specifications, date and/or period of offense, and punishment awarded.

e. Findings of Administrative Discharge Board.

f. Recommendation of Administrative Discharge Board.

g. Type of discharge recommended by Administrative Discharge Board:

h. Comments and recommendations of commanding officer.

i. SNM’s full name, rate and SSN have been indicated at the top right [sic] hand corner of each page of this administrative discharge case.

(Signature of commanding officer)

 B. Naval Military Personnel Manual, (NAVPERS 15560, Change 4/82, effective 19 May 1982 until 07 January 1983, Article 3420180, ADMINISTRATIVE DISCHARGES, paragraph 3, states:

3. Discharges.

a. It is the policy of the Chief of Naval Personnel to issue the type of discharge warranted by the circumstances in each individual case, and to ensure, insofar as is practicable, that similar action is taken in similar cases.

b. Prior to directing any discharge, all available information, including record data submitted and the comments and recommendations of the commanding officer, are thoroughly reviewed and considered. Characterization of discharge for misconduct and homosexuality cases may reflect honorable, general (under honorable conditions) or other than honorable (OTH) service. OTH misconduct and homosexuality.

Examples of OTH discharge for misconduct would normally be evidenced by misconduct involving:

- drug sale/trafficking

- drug abuse as evidenced by the amount/type of drugs involved and/or number of time of drug abuse subsequent to a drug warning, e.g., a possession of an excessive amount of controlled substances(s), or two or more incidents of drug abuse.

- drug abuse subsequent to in-patient rehabilitation

- fraudulent enlistment based upon a prior discharge under OTH conditions or for an offense committed prior to enlistment which would normally result in an OTH discharge

- civil conviction or action taken which is tantamount to a conviction for a violent offense(s), felony conviction(s) of any other offense(s) for which the maximum penalty under the UCMJ is death or confinement for one year or more

- all sex deviate offenses involving a minor and any sex act(s) consummated by coercion

- flagrant cases of frequent involvement of a discreditable nature with military/civil authorities, i.e., member’s service record reflects numerous punishments under the UCMJ involving minor offenses and/or misdemeanor(s)

- OTH discharges for misconduct may also be directed in cases of frequent involvement of a discreditable nature with military/civil authorities with a minimal number of punishments considered, e.g., three punishments under the UCMJ within the past year, or five within the past two years (from date of statement of awareness), if the offenses or one of the offenses is considered by the discharge authority of such severity to warrant such action, e.g., offenses(s) could have resulted in punitive discharge and/or one offense being considered reflects unauthorized absence (UA) in excess of 30 consecutive days. (Note: if the last offense considered is the UA offense, the one/two year determination period for consideration will reflect back from the first day of that offense.)

OTH discharges in cases of homosexuality would be evidenced by:

- homosexual acts(s) solicited or committed by using force, coercion or intimidation

- with a person under 16 years of age

- with a subordinate in circumstances that violate customary military superior-subordinate relationships

- openly in public view

- for compensation

- aboard a military vessel or aircraft or in another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

 “9.2 Propriety of the Discharge
a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”
D. SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge, states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:
1. Quality of service, as evidenced by factors such as:

a. service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b. awards and decorations;

c. letters of commendation or reprimand;

d. combat service;

e. wounds received in action;

f. records of promotions and demotions;

g. level of responsibility at which the applicant served;

h. other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i. length of service during the service period which is the subject of the discharge review;

j. prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k. convictions by court-martial;

l. records of nonjudicial punishment;

m. convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n. records of periods of unauthorized absence;

o. records relating to a discharge in lieu of court-martial.

2. Capability to serve, as evidenced by factors such as:

a. Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b. Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c. Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d. Discrimination. This includes unauthorized acts as documented by records or other evidence.
PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, supporting documents 1 , facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3420185.
         The applicant was discharged on 821101 under other than honorable conditions by reason of misconduct due to frequent involvement of a discreditable nature with civil or military authorities (A and B, Part IV). On 800529, the applicant had a SCM for assault and breach of the peace. On 810213, he had his first NJP for UA for which he received a Retention Warning. On 810213, the applicant received a second Retention Warning for alcohol abuse. On 811218, he was convicted in the Municipal Court of California, County of San Diego, South Bay Judicial District, Chula Vista, CA of assault with a deadly weapon or force likely to produce great bodily injury . On 811231, he was informed of his CO’s intention to recommend him for administrative separation (ADSEP) for the convenience of the government due to his civil conviction for which he received five years probation, 16 days in jail, a $2,400 fine, and restitution charges of $128. On 811231, the applicant chose to consult with legal counsel prior to objecting to the discharge and electing to waive all rights except the right to make a statement. On 820103, the applicant’s CO recommended him for ADSEP due to repeated alcohol-related offenses after numerous warnings. On 820106, the applicant was diagnosed as alcohol dependent and recommended for ARC after having been previously found to be alcohol dependent and recommended for ARC on 810218. On 820528, he completed ARC and returned to full duty. On 820630, the applicant received his third Retention Warning for unsatisfactory conduct. On 820907, he had his second NJP for wrongful use of barbiturates. On 821007, the applicant had his third NJP for assault. On 821007, he was notified of his CO’s intention to recommend him for ADSEP due to frequent involvement of a discreditable nature with civil or military authorities. On 821012, the applicant chose not to consult with legal counsel prior to electing to waive all his rights. On 821015, USS DULUTH Medical Officer diagnosed the applicant as not drug dependent and recommended ADSEP. On 821016, the applicant’s CO recommended him for ADSEP under other than honorable conditions for misconduct due to frequent involvement of a discreditable nature as evidenced by three NJPs, one SCM and one civil conviction. On 821026, the applicant’s CO requested that the applicant’s discharge be held in abeyance because the applicant was found medically unfit to be discharge. On 821101, he waived his right to treatment and any disability benefits. The Board found the applicant’s discharge to be both proper and equitable (C and D, Part IV).
         In the applicant’s issue 1, he writes, “I have reason to believe I did receive an upgrade, but I can’t be certain for sure.” The Board found nothing in the applicant’s records or its own records to support the applicant’s belief that he already received an upgrade. The Board found nothing to support that he had even applied for an upgrade of his discharge prior to this application. The Board will not grant relief on the basis of this issue.

         In the applicant’s issue 2, he writes, “I served my country honorably in my opinion not only my first, but second enlistment. I just fell into trouble the second time around.” The applicant's prior service was properly rewarded with Honorable discharges. The period of service under review, however, was marred by the applicant’s frequent involvement of a discreditable nature with civil or military authorities. In view of the serious nature of the offenses, the Board found the discharge as issued was a fair characterization of the quality of service rendered.

 He goes on to write, “I was almost a 4.0 sailor on board. But out on liberty my attitude changed after a few drinks and the command would not tolerate my behavior. I have all my quarterly marks to prove I was an outstanding 4.0 sailor in the rate of Boatswains Mate Petty Office 3rd Class.” The Board confirmed the applicant’s performance marks as 3.00 in Military Behavior and 3.42 overall. While these would normally rate an Honorable discharge, the Board finds that the applicant’s record of misconduct overshadows his otherwise good performance, and in keeping with CNMPC guidance, he was awarded an Other Than Honorable discharge (B, Part IV). The Board also reminds the applicant that the Board does not accept youth, immaturity, or alcohol addiction as factors sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions and must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.
Recorder’s Note:

 1 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Applicant’s DD Form 214 dtd 770729
Copy of Applicant’s DD Form 214 dtd 821101
Honorable Discharge Certificate dtd 800108
Extracts from Service Record (22 pages)
St Louis High School Grade Reports (3).


PART VI - INFORMATION FOR THE APPLICANT
Decision

The NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3420185.

If you believe that the decision in your case is unclear, not responsive to the issues that you raised, or does not otherwise comport with the decisional documents 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809.

 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
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023.


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