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NAVY | DRB | 2002_Navy | ND02-00403
Original file (ND02-00403.rtf) Auto-classification: Denied


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


ex-MSSR, USN
Docket No. ND02-00403

Applicant’s Request
The application for discharge review, received 020225, 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 designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted
1. I feel that my discharge due to alcohol abuse is the real reason for my discharge which made me afraid to face discharge board under depression.
2. I become an alcoholic in the submarine force and my record will show that every instance of disobedience was because of alcohol related offenses.
3. My duties were always accomplished above average.

 4. My record on board the USS GEORGIA and OHIO were above average.
5. I was promoted to E-4 on first try. I was an E-3 upon entrance to military.
6. I have not had a drink in 5 yrs and would hope, I could have forgiveness for being young and not use to alcohol around me.
Submitted by VFW:

 7. The applicant has established good post service. He has gone to school and earned certificates for his occupation. While on active duty, he did obtain an outstanding performance citation. He has express regrets for his conduct while on active duty. He is now married and has a child.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board (8 pages)
Copy of DD Form 214
 Applicant's letter to the Board dtd Mar 28, 2002 (2 pages)
 State of Ohio, Court of Common Pleas (Child Support) dtd Jan 28, 2002
State of Ohio, Court of Common Pleas, Probation Department, undated (content concealed)
Course Completion Certificate (Mess Management Specialist Class A) dtd Jul 6, 1990
 Letter to Applicant from Attorney General of Ohio dtd Jan 3, 2002 (content of letter concealed)
Certificate of Associate in Specialized Technology Culinary Arts dtd Aug 20, 1999
 Certificate of Apprenticeship (Baker) dtd Jun 19, 2000
 Citation for Mess Management Specialist Seaman
CO, USS GEORGIA ltr to applicant giving authority to assume title and wear the uniform of Third Class Petty Officer dtd Jun 28, 1991
 Institute of Culinary Arts transcript (2 pages)
 Pennsylvania Culinary Certificate of Completion (Nutrition) dtd Aug 28, 1998
Pennsylvania Culinary Certificate of Completion (Sanitation) dtd Apr 30, 1998
 Outstanding Physical Readiness Award dtd Jun 10, 1991
 High School Diploma dtd Aug 3, 1989
Certificate of Completion (Food Sanitation Training Certificate), Naval Medical Command, dtd Jul 6, 1990

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891214 - 900204  COG
Period of Service Under Review :
Date of Enlistment: 900205               Date of Discharge: 920421

 Length of Service (years, months, days):
         Active: 02 02 17
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 44
Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.33 (3)    Behavior: 3.33 (3)                OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSBN Deterrent Patrol Pins
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

901002:  NJP for violation of UCMJ, Article 92: failure to obey lawful order, drinking under the legal age of 21; violation of UCMJ, Article 134: disorderly conduct, by striking with his fist in the body area.
         Award: Forfeiture of $215 per month for 2 months. No indication of appeal in the record.
901002:  Retention Warning from Naval Submarine School, Groton, CT: Advised of deficiency (violation of UCMJ, Article 92 - failure to obey other lawful order and Article 134 - disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910123:  Surrendered onboard PSD Cleveland, OH at 1000. Returned to military control. On unauthorized absence from USS OHIO (SSBN729) since 1600, 91 Jan 22. Returned to USS OHIO for disciplinary action.
910815:  NJP for violation of UCMJ, Article 92: failure to obey order - on or about 26 Jul 91, disobey a lawful order, by wrongfully consuming alcohol while under the legal drinking age; violation of UCMJ, Article 128: assault - on or about 26 Jul 91, did unlawfully strike a person in the face with his fist; violation of UCMJ, Article 90: willfully disobeying superior commissioned officer - on or about 26 Jul 91, having received a lawful order from the Commanding Officer, to involve and inform his chain of command and law enforcement agencies of any further involvement pursuant to an event that occurred in which member was assaulted. Disobeyed the order by wrongfully assaulting the person whom assaulted member.
         Award: Restriction for 30 days, reduction to E-2 (punishment suspended six months). No indication of appeal in the record.
910815:  Applicant defrocked to permanent rate of MSSN and no longer authorized to wear uniform of higher paygrade.
911007:  Retention Warning from USS GEORGIA (SSBN 729) (GOLD): Advised of deficiency (privilege to drive on base is suspended until 17 Sep 93, the state of Ohio has suspended applicant’s license until Apr 94), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911108:  Punishment of reduction in rate suspended at CO's NJP of 15 Aug 91 vacated due to continued misconduct.
911109:  NJP for violation of UCMJ, Article 134, drunkenness; violation of UCMJ, Article 111, drunken driving; violation of UCMJ, Article 90, disobeying a superior commissioned officer.
         Award: 60 days restriction. No indication of appeal.
911205:  Drug and Alcohol Eval: Pt reported CAAC Bremerton on 3 Dec 91 as a DAPA referral for a DUI and drinking on restriction. Pt returned to SUBGRU Nine at 1340. Member is dependent on alcohol, has a history of excessive heavy drinking since age 19, resulting in loss of control, multiple blackouts and withdrawl symptoms. Has a history of drinking at least four times per week to intoxication. Member has poor potential for further useful service and is not amenable to treatment at this time. Recommend he be separated for Naval Service, attend three AA meetings, and referred to Family Service Center for anger and stress management and for financial counseling.
911216:  DARR: Civilian Police, alcohol substance abuse incident on 8 Nov 91 (member involved in a DWI in which he struck a police vehicle), determined dependent by CAAC, not amenable to rehab, no potential for further productive Naval service.
911227:  Disqualified for duty in submarine by reason of alcohol dependency.
911212:  Summary Court-Martial
         Violation of the UCMJ, Article 86: unauthorized absence on or about 2320, 29 Nov 91 until on or about 0052, 30 Nov 91.
          Violation of the UCMJ, Article 92: failure to obey order (2 specifications).
Specification 1: on or about 2320, 29 Nov 91 failure to obey an order by wrongfully consuming alcoholic beverages while at restricted barracks.
Specification 2: on or about 2320, 29 Nov 91 having knowledge of a lawful punitive restriction order, failed to obey that order by wrongfully entering the BEQ.
          Award: Confinement for 10 days, forfeiture of $563 per month for 1 months, reduction to E-1 and restriction for 20 days.
         
911213:  To confinement.

 911222:  From confinement to full duty.
920110:  Commander, Submarine Group 9 notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct as evidenced by the service record.
920311:  Applicant advised of his rights and having consulted 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.
920321:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct. Commanding Officer’s comments (verbatim): "Seaman Recruit (Applicant)'s misconduct and total disregard for navy policy clearly demonstrates that he has no potential for further naval service. Seaman Recruit (Applicant) has been an administrative burden. He originally signed a statement of awareness requesting an admin board on 92 Jan 09, but then changed his mind and waived all rights on 92 Mar 11. I strongly recommend Seaman Recruit (Applicant) be immediately separated from the naval service with an other than honorable discharge. Seaman Recruit (Applicant) has been scheduled for VA treatment on 92 Apr 01, and then will be discharged after the completion of Level III.”
920311:  Applicant was offered and accepted in-patient treatment at a Veterans Administration (VA) hospital prior to discharge.

 920330:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920421:  Applicant was offered, but declined in-patient treatment at a Veterans Administration (VA) hospital prior to discharge.
920512:  Commander, Submarine Group 9 advised BUPERS that applicant refused VA treatment for alcohol and was separated with an Other Than Honorable discharge on 92 Apr 21.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATIONS

Discussion

The applicant was discharged on 920421 under other than honorable conditions for misconduct due to a pattern of misconduct (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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, one summary court-martial and adverse counseling entries. While he may feel that his alcohol dependence and youth were factors that contributed to his actions, 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.
Issue 2. The applicant’s alcohol dependence does not mitigate his misconduct sufficient to warrant an upgrade to his characterization of service. Relief denied.
Issues 3-5, and 7. The applicant’s record of service and accomplishments do not mitigate his misconduct sufficient to warrant an upgrade to his characterization of service. Relief denied.
Issues 6 and 7. The applicant’s discharge characterization accurately reflects his service to his country. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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. Relief not warranted.

The applicant 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. 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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