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NAVY | DRB | 2000_Navy | ND00-00203
Original file (ND00-00203.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND00-00203

Applicant’s Request
The application for discharge review, received 991129, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed CIVILIAN COUNSEL as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803. 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. Evaluation and work performance were excellent before Mr K___ was discharged.

2. The reason Mr K___'s rank was dropped from E-4 to E-1 and his leaving the military was a short term drinking problem which Mr K___ has treated. Furthermore, client has not had a drink in six years.

3. In upgrading to an Honorable Discharge, Mr K___ will qualify for the GI Bill's College Assistance Program to which he has prepaid $2, 500.00. He will then return to college to complete his engineer degree.

4. Mr K_____ wishes to re-enlist into the Navy Reserve which he may not do unless his status is upgraded to an Honorable Discharge.

5. Under current standards, he would not receive the type of discharge he received.

6. Clemency is warranted because it is an injustice for Mr K___ to continue to suffer the adverse consequences of a bad discharge.

7. He has been a good citizen since discharge.

8. His ability to serve was impaired by his youth and immaturity.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letters from Civilian Counsel (4)
Copy of DD Form 214
Copies of DD Form 215 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        870909 - 900906  HON
         Inactive: USNR (DEP)     870810 - 870908  COG

 Period of Service Under Review :
Date of Enlistment: 900907               Date of Discharge: 920916

 Length of Service (years, months, days):

         Active: 02 00 10
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (4)    Behavior: 3.05 (4)                OTA : 3.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NMOSSR

 Days of Unauthorized Absence: None

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 :

900907:  Re-enlisted onboard USS L Y SPEARS (AS-36) for 4 years.
910530:  NJP for violation of UCMJ, Article 91: Disrespectful in language toward petty officer, violation of UCMJ Article 134: Wrongfully received stolen property.
         Award: Forfeiture of $100.00 per month for 2 months. No indication of appeal in the record.

910612:  Retention Warning: Advised of deficiency (You were awarded non-judicial punishment on 30 May 1991 for violation of the UCMJ, Article 91 - Disrespectful in language and Article 134 - Receiving stolen property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910823:  NJP for violation of UCMJ, Article 128: (2 Specifications), Assault.
         Award: Forfeiture of $200.00 per month for 2 month, reduction to E-3). No indication of appeal in the record.

920204:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 128 (2 Specifications) Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
920409:  NJP for violation of UCMJ, Article 117: Provoking speeches and gestures, violation of UCMJ Article 134: Communicating a threat.
         Award: Forfeiture of $440.25 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

920409:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 117, provoking speeches and gestures & Article 134, communicating a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920624:  Civil conviction at Honolulu District Court, apprehended for speeding, driving with a invalid driver's license, driving without no-fault car insurance, and drunk, and drunk driving by Hawaii Police Department at 2120 hours on 4 June 1992 under docket number HPD#92217933. As identified in the HPD report, his BAC was .118%. He was processed and held on $150.00 bail to appear in Honolulu District Court on 5 June 1992. Action taken by military authority.

920720:  NJP for violation of UCMJ, Article 112: Drunkenness, to wit: operate a passenger car while drunk.
         Award: Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 45 days, reduction to next inferior pay grade (suspended for 3 months). No indication of appeal in the record.

920721:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920721:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920806:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
920825:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

920903:  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 920916 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 applicant’s issues 1 and 5, 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 its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

In response to applicant’s issue 2, 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.

In response to applicant’s issue 3, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school.

In response to applicants issue 4, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment. A request for waiver is normally done only during the processing of a formal application for enlistment.

In response to applicant’s issue 6 and 7, 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 (E). 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), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (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 not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

In response to applicant’s issue 8, the Board found that the applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.
Relief denied.

Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, 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 communicating a threat, 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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