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NAVY | DRB | 2002_Navy | ND02-00333
Original file (ND02-00333.rtf) Auto-classification: Denied


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

ex-FN, USN
Docket No. ND02-00333

Applicant’s Request
The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Honorable. 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 021029. 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, as submitted

 1. I am writing to the panel today requesting that my discharged be changed (to a honorable). I was separated from the US Navy "with a other than honorable" discharge (4) four years ago. I had forsaken my commitment. The reason for my early partition was due to my over indulgence in alcohol. I was young, vigorous, anxious, and very much goal oriented had hopes of serving my (4) four years until the day I was notified that my grandmother who will always be in my heart, suffered a heart attack. Therefore I began to drink to deal with the sorrow. Things started changing within me. The US Navy offered counseling. I refused it, and placed myself in a world of solitude...I only had one more year left. Suddenly, my military career was over. Since then I have been through my share & trials and tribulations. I have not gone back to drinking. I have a son, been through college and now it is time for me to make accordance. I know and understand that no matter what happens to us individually we all share that common vitality, and that is life... Respectfully

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930902 - 930912  COG

 Period of Service Under Review :
Date of Enlistment: 930913               Date of Discharge: 960802

 Length of Service (years, months, days):

         Active: 02 10 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)    Behavior: 3.30 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: 5

 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 :

950422:  DAPA Memorandum: Applicant self referred for alcohol and drug use on 30 Jan 96. Applicant failed to make his CAAC appointment on 14 Mar 96, and on 10 Apr 96 he failed to cooperate with the Ship's Medical Officer. As such he has not been diagnosed as alcohol, or drug dependent.
960327:  Applicant briefed on Navy's policy on drug and alcohol abuse and declined treatment.
960530:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 0715, 22 Mar 96 to 1100, 27 Mar 96 (5 days/surrendered), (2) Unauthorized absence 0715 - 1500, 28 Mar 96, (3) Unauthorized absence 0715 -0745, 2 Apr 96, (4) 0715 - 0745, 1 May 96, violation of UCMJ, Article 112A (2 specs): (1) Wrongfully used marijuana between Jan 95 and Jan 96, (2) Wrongfully used LSD between Jan 95 and Jan 96, violation of UCMJ, Article 115: For the purpose of avoiding service as an enlisted person feign alcohol dependence on 9 Mar 96.
         Award: Forfeiture of $537.45 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
960531:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
950531:  Applicant advised of his 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.
960625:  Commanding Officer, USS EMORY S. LAND (AS-39) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

960722:  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 960802 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 Applicant contends that his problems in the Navy can be attributed to his "overindulgence in alcohol." The Applicant was of sound mind when he committed his misconduct. While he may feel that his alcoholism was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Alcohol abuse is never a defense to misconduct. 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 on this basis is denied.

Issue 2: The Applicant also contends his disciplinary problems were the result of stress caused by the heart attack his Grandmother suffered. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB agrees the Applicant's service was equitably characterized. Relief denied.

Issue 3: The Applicant’s other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. There was no evidence of impropriety, inequity or procedural irregularities in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process at every opportunity. The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant’s discharge to an honorable characterization. Relief denied.



Issue 4: The Applicant's request for modification of the characterization of his service included some comments on his post-service conduct. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. 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. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



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. 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 " 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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