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NAVY | DRB | 2002_Navy | ND02-00503
Original file (ND02-00503.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND02-00503

Applicant’s Request
The application for discharge review, received 020305, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member proffers that his alcoholism caused his misconduct of record. He further avers that he asked for help with his problem but was not provided any. On this basis, he opines that upgrade of his characterization of service to honorable is warranted.

2. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
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)     881119 - 890724  COG

 Period of Service Under Review :
Date of Enlistment: 890725               Date of Discharge: 910718

 Length of Service (years, months, days):

         Active: 01 11 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 49

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 2.70 (2)                OTA : 2.70

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NMOSR

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :
        
901114:  NJP for violation of UCMJ, Article 91 (3 Specs): Spec 1: Willfully disobeyed a lawful order from a petty officer to "go assist the doctor." Spec 2: Willfully disobeyed a lawful order from a petty officer. Spec 3: Disrespectful in language towards a petty officer. Violation of UCMJ, Article 134: Incapacitated for the proper performance of his duties.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.

901114:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article(s): 91: 2 specifications of willful disobedience of a petty officer, and disrespectful in language towards a petty officer; and 134: incapacitated for the proper performance of duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910502:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order.
         Award: Forfeiture of $50.00 pay per month for 2 months, restriction to limits of NAVCOMMSTA HAROLD E HOLT for 15 days, extra duty for 15 days, reduction to E-2. No indication of appeal in the record.
910517:  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 NJP of 901114 for being disrespectful in language towards a petty officer, and incapacitated for the proper performance of duty and NJP of 2 May for failing to obey a lawful written order.
910517:          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.
910523:  Medical officer's evaluation indicates Applicant is alcohol dependent, also found that Applicant has a psychological disorder, which could not be confirmed because the closest psychologist is in Hawaii. The medical officer's notes indicated that his exam revealed that the member has low self-esteem.

910529:  Applicant elected inpatient alcohol rehabilitation treatment through a Veteran's Administration Hospital.

910530:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense as evidenced by NJP of 901114 for being disrespectful in language towards a petty officer, and incapacitated for the proper performance of duty and NJP of 2 May for failing to obey a lawful written order. Brief Synopsis of Facts: For NJP of 901114 SNM (Who was a DA at the time) was told by his LPO upon arriving at work to assist the dental officer. SNM used disrespectful language to his LPO and refused to assist the dental officer. His LPO then noticed that he smelled of alcohol and he was taken to medical for a competency for duty examination where it was learned he was intoxicated. The NJP of 2 May was the result of SNM being found in the room of a female service member after 2400 in violation of the Local BEQ Instructions.

910702:  BUPERS directed the Applicant's discharge under honorable conditions (general) 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 910718 under honorable conditions (general) 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. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions, an adverse counseling entry, and overall poor performance of duty. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The Applicant’s alcohol dependence does not mitigate his misconduct. The Board found no indication that the Applicant was improperly or inequitably denied alcohol rehabilitation treatment or that the counsel the Applicant received concerning his administrative separation was inadequate. Relief denied.

Issue 2. 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 inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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, and certification of non-involvement with civil authorities, 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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