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NAVY | DRB | 2000_Navy | ND00-00078
Original file (ND00-00078.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND00-00078

Applicant’s Request
The application for discharge review, received 991019, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000713. After a thorough review of the records, supporting documents, 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. To the honourable ladies and gentleman on the case review board of previously enlisted personal.
It has recently been brought to my attention that after a period of six (6) months, I would be made eligible for an up-grade in the discharge I received.
My naval records will show (last name deleted), I am no longer married to J_ M_. (Applicant's maiden name deleted) is my maiden name.
I received this discharge (please see inclosed documents) when my married life and concurrent alcoholism forced judgement on the part of my superiors.
Please consider my application and give me the up-grade requested regarding my discharge.
I am now a fully recovered (amen) alcoholic with a great deal of potential.
I ask again, please consider my request as it would surely help for securing a good start in a new life (for a job!) Thank you, God bless you,

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Copy of background check revealing no criminal history with Hubbard Township Police Department dated November 2, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870831 - 880420  ELS
 USNR (DEP       880426 - 880524  COG
Period of Service Under Review :
Date of Enlistment: 880525               Date of Discharge: 900326

 Length of Service (years, months, days):

         Active: 01 10 02
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 3.20 (3)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 28

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890906:  Applicant terminated from Navy Alcohol and Drug Abuse Program for failure to display proper motivation for assistance.
891003:  CAAC: A: Alcohol abuse, psychologically dependent. Plan: Continue antabuse, AA meetings, stressed need for abstinence.
900205:  Competence for duty: Not competent for duty.

 900208:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 0800, 18Dec89 until 1459, 15Jan90 (28 days/surrendered).
         Charge II: violation of the UCMJ, Article 134.
 Specification: Adultery.
          Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $400.00, restriction for 60 days, reduced to SR.
         CA action 900208: Sentence approved and ordered executed.

900226:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
900226:          Applicant advised of her 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.
900302:  Applicant offered in-patient treatment at VA hospital. Applicant waived VA treatment.
900309:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900323:  CNMPC 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 900326 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to the applicant’s issue, the Board determined that relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (C, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge. Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), and proof of her not using drugs/alcohol (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has only provided certification of non-involvement with civil authorities (police records check) as documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received by 26 March 2005.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, for adultery, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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