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NAVY | DRB | 2001_Navy | ND01-00142
Original file (ND01-00142.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND01-00142

Applicant’s Request
The application for discharge review, received 001115, 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. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member avers that his overall service record warrants separation 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:
Statement from the applicant
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 - 920301  COG

 Period of Service Under Review :
Date of Enlistment: 920302               Date of Discharge: 941219

 Length of Service (years, months, days):

         Active: 02 09 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.47 (3)                OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

920302:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse: Speeding ticket, 2/92 paid $64 fine, speeding ticket, 1/92, paid $62 fine. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

930625:  NJP for violation of UCMJ, Article 111: Drunken or reckless driving.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
930625:  Retention Warning: Advised of deficiency (Drunken or reckless driving.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
931223:  NJP for violation of UCMJ, Article 111: Driving while intoxicated on board Naval Station San Diego on 14Nov93.
         Award: Forfeiture of $450 per month for 2 months, restriction for 10 days, extra duty for 30 days, reduction to AR. No indication of appeal in the record.
940111:  Counselor Assessment and Recommendation: Alcohol dependency. Recommend Level III. Refer to medical officer for psychological factors evaluation/diagnosis. Refer to AA 12 step program meetings.
940307:  Drug/Alcohol Evaluation: Applicant meets DSM-III-R for psychoactive substance dependence. Moderate. Recommend Level III treatment.

941110:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol rehabilitation failure.
941110:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
941110:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol rehabilitation failure.

941122:  Separation examination: Block 25: Referred to Level III for ETOH rehabilitation - declined. 9/94.

941130:  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 941219 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).

Issue 1 and 2. The applicant states his overall service record warrants separation under Honorable conditions. Additionally, he requests the Board to consider his post-service conduct, in assessing the merits of his application. The Board determined the applicant’s two NJPs for violation of UCMJ, Article 111 and refusal to under go Level III ETOH rehabilitation treatment were sufficient reason for his discharge under Other Than Honorable conditions. T o 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. 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 9, effective
22 Jul 94 until 02 Oct 96, 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 111 (Drunken driving), 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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