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NAVY | DRB | 2001_Navy | ND01-00599
Original file (ND01-00599.rtf) Auto-classification: Denied


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

ex-STGSA, USN
Docket No. ND01-00599

Applicant’s Request
The application for discharge review, received 010403, 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 011031. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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 (Verbatim)

 1. Completed CAAC Level 3 Alcohol Treatment, was not prepared to returned to sea service. At the time I was arrogant, stubborn, and would not admit my faults.

2. At the time of Incident leading to discharge, CMAA without cause provoked situation leading to incident. Without disrupting anyone civil or military, I was on route to USS Taylor FFG-50 when CMAA decided to confront me with his interpretation of my "attitude", not feeling any obligation to discuss anything with CMAA further I attempted to return to my ship off liberty. I was then provoked into a situation in which I admittedly lost control.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Evaluation Report & Counseling Record (2pgs)

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 950413               Date of Discharge: 980710

 Length of Service (years, months, days):

         Active: 03 02 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 74

 Highest Rate: STG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 3.00 (1)                OTA: 3. 50 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: DSM, AFSM
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 :

960516:  NJP for violation of UCMJ, Article 86: (2 Specs), Unauthorized absence, violation of UCMJ Article 108: (2 Specs) Destruction of government property, violation of UCMJ Article 134: Drunk and disorderly.
         Award: Forfeiture of $375.00 per month for 2 months, restriction and extra duty for 30 days, reduction rate (suspended for 6 months). No indication of appeal in the record.

960516:  Retention Warning: Advised of deficiency (A failure to comply with the Uniform Code of Military Justice and U.S. Navy Regulation: Violation of the UCMJ, Article 86: Failure to go to appointed place of duty and go from appointed place of duty; violation of the UCMJ, Article 108: Destruction of government property; violation of the UCMJ, Article 134: Drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970615:  NJP for violation of UCMJ, Article 109: Destruction of property other than military property, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134: Disorderly conduct.
         Award: Forfeiture of $500.00 per month for 2 months, 60 days restriction and CAAC evaluation, reduction to STGSN. No indication of appeal in the record.

970617:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 134: Disorderly conduct; violation of the UCMJ, Article 109: Property other than military property of the United States -waste, spoilage, or destruction; violation of the UCMJ, Article 128: Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980520:  Naval Addictions Rehabilitation Clinic Discharge diagnosis indicates applicant is alcohol dependent with physiological dependence, Nicotine dependence, also, out of the Navy Weight Standards.

980624:  NJP for violation of UCMJ, Article 91: Insubordinate conduct, violation of UCMJ Article 128: Assault, violation of UCMJ Article 134: Indecent language.
         Award: Forfeiture of $591.00 per month for 2 months, restriction for 45 days, reduction to STGSA. No indication of appeal in the record.

980708:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct pattern of misconduct; alcohol abuse rehabilitation failure; and misconduct commission of a serious offense.
980708:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
980708:  Commanding Officer, USS TAYLOR (FFG-50) recommended discharge under other than honorable conditions by reason of pattern of misconduct; alcohol abuse rehabilitation failure; and misconduct commission of a serious offense.

980709:  Commander, Naval Base, Jacksonville authorized 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 980710 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).

 The applicant’s first issue states: “Completed CAAC Level 3 Alcohol Treatment, was not prepared to return to sea service. At the time I was arrogant, stubborn, and would not admit my faults.” The applicant was afforded ample opportunity to correct his deficiencies. The applicant, of his own admission, refused to comply with regulations. The Board determined this is a non-decisional issue. No further comment is required. Relief is not warranted.

The applicant’s second issue states: “At the time of Incident leading to discharge, CMAA without cause provoked situation leading to incident. Without disrupting anyone civil or military, I was on route to USS Taylor FFG-50 when CMAA decided to confront me with his interpretation of my "attitude", not feeling any obligation to discuss anything with CMAA further I attempted to return to my ship off liberty. I was then provoked into a situation in which I admittedly lost control.” The applicant’s issue does not introduce any material fact that demonstrates that his discharge was improper or inequitable. The record shows the applicant was found guilty on three separate occasions of commission of serious military offenses. The applicant was repeatedly counseled for his misconduct and treated in an inpatient program for his alcoholism. The Board found this issue non-decisional. Relief is not warranted.

 The following is provided for the benefit of the applicant. 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 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.

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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