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NAVY | DRB | 1999_Navy | ND99-00998
Original file (ND99-00998.rtf) Auto-classification: Denied


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

ex-DPSN, USN
Docket No. ND99-00998

Applicant’s Request
The application for discharge review, received 990719, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My other than honorable discharge was inequitable because it was based on one isolated incident in 87 months of service with no other adverse action (MILPERSMAN 1910-202, 1910-302; all service record entries for petitioner prior to September, 1993; statement of petitioner, page 9, par. 4).

2. My other than honorable discharge was improper because I was never specifically informed of the commanding officer's recommendation for the character of my discharge during captain's mast or prior to my being required to choose between treatment and discharge. (MILPERSMAN 1910-010; mcm 5.4.3.c (4)(ii); statement of petitioner, page 10, par. 2-3).

3. My other than honorable discharge was improper because I was not allowed adequate opportunity to present matters in my defense during captain's mast. (MCM 5.4.3.c (e); statement of petitioner, page 9, par. 6).

4: My other than honorable discharge was improper because specification 1 in the report leading to my discharge is incorrect in that, although evidence may suggest that I was drunk and disorderly ashore and off-base on the date specified, there was never evidence, testimonial or other, that I was disorderly onboard a naval vessel on said dat. (MCM 4.7.4.3.c (2); statement of petitioner. page 8, par 6.

5. My other than honorable discharge was improper because the inclusion of Specification 1 as one of two separate reportable offenses in the report leading to my discharge was invalid in that it was not in any way referred to during captain's mast. (MCM 5.4.3.c ©; statement of petitioner, page 9, par 6, page 10, par 2-3).

6. My other than honorable discharge was improper because the inclusion of Specification 1 as a distinctly reportable offense in the report leading to my discharge negated some of its legitimacy due to the inordinate amount of time (six weeks) between the allegedly observed offense and its inclusion. (MCM 2.3.1.2 (b); statement of petitioner, page 8, par 6, page 9, par 1,4,6; Commanding Officer's Recommendation for Separation, Supporting Documents, page 22).

7. My other than honorable discharge was improper because the CAAC Drug and Alcohol Abuse Report (OPNAV 5350-2) recommending separation from service cited Specification 1 of the report leading to my discharge (which, alone, would not have led to my discharge) while making no reference to Specification 2 (which directly led to the report leading to my discharge). (OPNAV 5350-2, Supporting Documents, page 29-30, Statement of petitioner, page 10, par 4).

8. My other than honorable discharge was inequitable because adversely influencing the incident leading to my discharge was the fact that I was specifically tasked by my chain of command with duties in which I was in no way trained or assisted. (Statement of petitioner, page 7, par 3-4, page 8, par 2, page 9, par 6).

9. My other than honorable discharge was inequitable because adversely influencing the incident leading to my discharge was the fact that, by the assignment of other duties, I was prevented from performing duties for the billet for which I was specifically trained. (Statement of petitioner, page 7, par 3-4, page 8, par 2, page 9, par 6).

10. My other than honorable discharge was inequitable because my prior request to CNP (PERS-282) for discharge was not given fair and impartial consideration by my chain of command based on its own validity. There are no MILPERSMAN guidelines for "conscientious objection" to anything other than war and to exclusively follow the guidelines established for "conscientious objection to war" was improper. These facts bear direct relevance to how my chain of command perceived me and my NJP. (MILPERSMAN 1900-020; MCM 6.A.8; MCM 6.W.6.10; Statement of petitioner, page 8, par. 3-5, page 9, par 6; Supporting Documents pages 34-35).

11. My other than honorable discharge was inequitable because I was not required to volunteer for CAAC Level III treatment in order to receive it, contrary to what my Commanding Officer and chain of command had led me to believe. (MILPERMAN 1910-232; OPNAVINST 5350.4B, Encl (7), App A. 4.b; Statement of petitioner, page 9, par 6, page 10, par 1-2; OPNAV 5350-2, Supporting Documents, page 30; Administrative Remarks, NAVPERS 1070/613, Supporting Documents, page 32).

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2)
Statement of Petitioner (11pgs)
Statements of Character for Petitioner (6pgs)
Statement of Authentication of Commendation for Petitioner
Letter of Commendation
Copies of Discharge Information (7pgs)
Copy of DAAR
Copy of Enlisted Performance Record
Copy of Acknowledgement of Counseling for VA Treatment.
Copy of LINK Magazine cover page
Copy of relevant Article from LINK Magazine

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        860618 - 920615  HON
         Inactive: USNR (DEP)     851011 - 860617  COG

 Period of Service Under Review :
Date of Enlistment: 920616               Date of Discharge: 931013

 Length of Service (years, months, days):

         Active: 01 03 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 80

 Highest Rate: DP2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.40 (2)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCA

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

920616:  Reenlisted at FCDSSA by PSD DNECK VA for 4 years.

 930907:  NJP for violation of UCMJ, Article 134: (2 Specifications), Spec 1: Was drunk and disorderly on 930720, Spec 2: Was drunk and disorderly and urinated in his rack on 930901.
         Award: Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 20 days, reduction to E-4. No indication of appeal in the record.

930913:  DAAR indicates applicant was evaluated by Senior Medical Officer for alcohol abuse, applicant found dependent on alcohol, afforded Level III Treatment, but not amenable to Level III, recommended for separation via VA Hospital.

930922:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Commanding Officer's NJP on 930907 for violation of the UCMJ, Article 134 (Drunk and disorderly on board a Navy vessel), and alcohol abuse rehabilitation failure as evidenced by his failure to participate in, cooperate in, or successfully complete a Level II or III rehabilitation treatment program.
930922:          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.
930929:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure

930930:  Applicant identified by CAAC/MEDICAL as an Alcohol abuser, notified of offer to attend Level III program for necessary treatment for rehabilitation. Applicant refused treatment.
931012:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931013 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was inequitable (C and D).

In the applicant’s first issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

Responding to the applicant’s second through fifth issues, the Board found that the applicant has been given all appropriate due process. The applicant provided no evidence to support his allegations. Furthermore, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Relief is therefore denied.

Concerning the applicant’s sixth issue, the Board disagreed with the applicant’s argument. The Commanding Officer was within his rights to consider both the applicant’s reportable offenses in taking the applicant to Captain’s Mast. Relief denied.

The Board did not consider statements on the applicant’s CAAC Drug and Alcohol Abuse Report sufficient reason to upgrade the applicant’s discharge. Relief denied.

 The applicant stated he tried to serve to the best of his ability but was not allowed to due to his being assigned inappropriate duties. The NDRB recognizes that serving in the Navy is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most sailors serve honorably and well and therefore earn honorable discharges. In fairness to those sailors, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due. While the NDRB respects the fact that the applicant might have been assigned duties he didn’t like, the Board felt that this fact had nothing to do with the propriety and equity of the applicant’s discharge.

Concerning the applicant’s last two issues, the Board determined they had no bearing on the propriety and equity of the applicant’s discharge.

The Board upgraded the applicant’s discharge on the basis of the applicant’s post-service conduct and the letters of recommendation from his co-workers and superiors. 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. Although the Board felt that the applicant’s post-service conduct was of such as to outweigh the applicant’s misconduct, the Board did not feel the applicant’s post-service conduct was deserving of an Honorable discharge. The applicant is encouraged to continue in his post-service endeavors. Other important aspects of post-service conduct include but are not limited to documentation of community service, certification of non-involvement with civil authorities and proof of his sobriety in order for consideration for clemency based on post-service conduct. He is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. The applicant’s discharge characterization will change to General, but the reason for the applicant’s discharge will remain the same.




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. 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 Street SE Rm 309
                  Washington, D.C. 20374-5023     


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