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NAVY | DRB | 2001_Navy | ND01-00079
Original file (ND01-00079.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00079

Applicant’s Request
The application for discharge review, received 001020, requested that the characterization of service on the discharge be changed to honorable or 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 011214. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The discharge was improper and inequitable because what I was getting discharge for was failing to complete the Alcohol/Drug program in which I was informed that if I did not complete the program I will be discharged with a General Under Honorable Condition discharge in which I wasn't.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Drug/Alcohol Abuse Rehabilitation Program Acceptance Letter
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     980211 - 980902  COG

 Period of Service Under Review :
Date of Enlistment: 980903               Date of Discharge: 990701

 Length of Service (years, months, days):

         Active: 00 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 54

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: None

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 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990428:  NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA 1800, 990426 until 0630, 990427; Spec 2: UA 0900, 990428 until 1300, 990428, violation of UCMJ Article 91: Disrespectful in language on 990409 toward a PO3 by saying "Fuck You, Bitch", violation of UCMJ Article 92: (2 Specifications), Spec 1: Did on 990402 failed to obey a lawful regulation by drinking alcohol while under the age of 21; Spec 2: Did on 990402 failed to obey a lawful order issued by an Ensign to return to the legal office at the appointed time.
         Award: Forfeiture of $479.90 per month for 1 month, restriction and extra duty for 21 days, oral reprimand. No indication of appeal in the record.
990525:  Applicant released from Naval Hospital, Great Lakes, Illinois as a treatment failure [Extracted from Case File].
        
990526:  NJP for violation of UCMJ, Article 86 (2 Specs), Spec 1: UA 1245, 990516 until 1445, 990516; Spec 2: UA 1850, 990514 until 2100, 990514; violation of UCMJ Article 92: (2 Specs), Spec 1: Failure to obey a lawful regulation 990516 by drinking alcohol while in a class 1 restricted status; Spec 2: Failure to obey a lawful regulation 990516 by drinking alcohol under the age of 21.
         Award: Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
990609:  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 CO's NJP of 980428 and 990526; and misconduct due to alcohol abuse rehabilitation failure as evidenced by the release from treatment letter dated 990525 [Extracted from Case File].
990609:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights [Extracted from Case File].
990615:  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 [Extracted from Case File].

990617:  Commander, Naval Training Center, Great Lakes authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Extracted from Case File].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990701 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 proper and equitable (C and D).

Issue 1. The Board found no indication that the command informed the applicant he would be discharged under honorable conditions. The applicant was processed for discharge for misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. He was recommended for discharge under other than honorable conditions, and the applicant acknowledged the same on 990609. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.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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