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NAVY | DRB | 1999_Navy | ND99-00037
Original file (ND99-00037.rtf) Auto-classification: Denied


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

ex-CMCR, USN
Docket No. ND99-00037

Applicant’s Request
The application for discharge review, received 981006, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927. After a thorough review of the records, facts, and circumstances unique to this case, 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 – Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (EQUITY ISSUE) This former member opines that alcohol dependency impaired his ability to serve and sufficiently extenuated his misconduct of record to warrant the Board's relief with recharacterization of his service period to General (Under Honorable Conditions).

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     911025 - 920915  COG

 Period of Service Under Review :
Date of Enlistment: 920916               Date of Discharge: 960906

 Length of Service (years, months, days):

         Active: 03 11 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: CMCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.87 (3)    Behavior: 3.53 (3)                OTA: 3.87 4.0 evals

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.67 5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (3), NER (2), JMU, OSR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950628:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
950921:  Pysch eval: Alcohol abuse.

 951018:  NJP for violation of UCMJ, Article 108: Damaging, destroying, or losing military property, violation of UCMJ Article 134: Disorderly conduct, drunkenness.
         Award: Forfeiture of $350 per month for 1 month, restriction and extra duty for 45 days. Restriction and extra duty suspended for 45 days. No indication of appeal in the record.
951024:  Applicant found to be an alcohol abuser. Recommend Level III.

 951213:  Retention Warning from U.S. Naval Mobile Construction Battalion Seventy-Four: Advised of deficiency (Violation of UCMJ, Articles 108, for willfully damaging, by striking with your fist, military property; and 134, for your drunk and disorderly conduct in Barracks 7216, Camp Shields Okinawa, Japan, wherein you caused willful damage to military property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960521:  Applicant UA from his aftercare program at CAAC, CBC, Gulfport, MS on 21 May 1996, after being informed by the Executive Officer and DAPA not to miss anymore aftercare. DAPA recommends applicant be administratively separated for Alcohol Abuse Rehabilitation Failure.

960731:  NJP for violation of UCMJ, Article 86: Failure to go to place of duty, violation of UCMJ Article 90: Willful disobedience of superior commissioned officer, violation of UCMJ Article 91: Willful disobedience of petty officer.
         Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Restriction and extra duty for 15 days suspended for 6 months. No indication of appeal in the record.
960801:  Commanding Officer, U.S. Naval Mobile Construction notified applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your 21 May 1996 unauthorized absence from a formal Level III, Aftercare Program session with the Counseling and Assistance Center, for which you were declared a Level III rehabilitation failure on 22 May 1996, and misconduct due to a pattern of misconduct as evidenced by three separate instances of commanding officer's nonjudicial punishment, awarded during your current enlistment.
960801:          Applicant advised of his 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.
960814:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct.

960821:  Chief of Naval Education and Training directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 960906 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) This former member opines that alcohol dependency impaired his ability to serve and sufficiently extenuated his misconduct of record to warrant the Board’s relief with recharacterization of his service period to General (Under Honorable Conditions). The Board does not accept alcohol abuse as a factor 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. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant did not provide any letters of recommendation from his employer as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


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. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.


PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may 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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     

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