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NAVY | DRB | 2002_Navy | ND02-00632
Original file (ND02-00632.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND02-00632

Applicant’s Request
The application for discharge review, received 020408, 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 030124. 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. Since being discharged from military 3-94, I have only had 2-3 public intoxication charges against me. The last one was about three years ago in Borgar Texas. I would like to get this discharge changed to general under honorable conditions so that I can qualify for a job with the state of Texas. I have no felony criminal record. The state said I could not be hired unless my discharge was upgraded. I would appreciate it very much if you could give me another chance to better my position in life. I served during the Gulf War and received national defense service medal & the sea service deployment ribbon.

 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)     910830 - 911111  COG

 Period of Service Under Review :
Date of Enlistment: 911112               Date of Discharge: 940302

 Length of Service (years, months, days):

         Active: 02 03 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.30 (2)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 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 :

930514:  Civil conviction: Driving under the influence (.132%)
 Sentence: Fined $467.00, 6 months probation, 6 months revoke license, 50 hours community service, DUI School.

 930608:  Retention Warning: Advised of deficiency (CO's NJP on 930608 for a violation of the UCMJ, Article 86: UA and Article 92: disobeying lawful order (underage drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930608:  NJP for violation of UCMJ, Article 86: UA from 0700, 930513 to 1800, 930514, violation of UCMJ Article 92: Violation of lawful order 930513.
         Award: Forfeiture of $407.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
930628:  Absence excused, charged leave.

 940122:  NJP for violation of UCMJ, Article 134: Drunk and disorderly; violation of UCMJ Article 134: Underage drinking.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
940129:  Medical officer's evaluation found applicant alcohol dependent.

 940202:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your drinking underage and drunk and disorderly conduct on 931125, misconduct due to civil conviction as evidenced by your conviction for driving under the influence, and misconduct due to the commission of a serious offense as evidenced by your violation of the UCMJ, Article 92: Failure to obey a lawful order.
940202:  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.
940207:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to civil conviction and misconduct due to commission of a serious offense.

940222:  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 940302 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).

After a careful review of the Applicant ’ s service record, which included a civil conviction for DUI and two NJP ’ s for unauthorized absence and drunk and disorderly conduct, the Board discerned there was no impropriety or inequity in the characterization of the applicant's service or the assigned reason for discharge at the time of discharge. Relief is denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error or inequity must have been found to have existed during the period of enlistment in question. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of substance free lifestyle. At this time, the applicant has not provided such documentation for the Board to consider. Therefore, no relief will be granted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. 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 5, effective
05 Mar 93 until 21 Jul 94, 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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