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NAVY | DRB | 2002_Navy | ND02-00807
Original file (ND02-00807.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND02-00807

Applicant’s Request
The application for discharge review, received 020515, requested that the characterization of service on 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 030214. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I had been discharged but I could have saved a lot of paper work if they helped me when I had asked for help, I had went to my command corpsman and told him that I had a major drinking problem he told me he'll call and get me in time went by I was still out drinking not able to get a hold on my problem alone I went in a second time and still they could not get me in. I then began running into personal problems my drinking was affecting my work. I was put on restriction for my offense. After I was off I had went out and started drinking again not yet receiving any help. I then received my second punishment after that I had finally received ARC admittance. Going into ARC I wanted to get rid of the problem the first two days of seeing films of liver diseases and other slide, helped but when got in groups it seemed their weren't many people with alcohol problems but drugs and emotional problems the group did not seem to help but this was something I would have to overcome myself I had made the choice to checkout of ARC and went back to my command while they started paperwork to discharge me since coming out of ARC I have not had a drop of alcohol since I would like to get my discharge changed so I can get a decent job and prove that I am more than an alcoholic.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Personnel Qualification Standards
Employment Reference Letter from A_ D_, Assistant Manager of Sellersburg Burger King, undated
Letter of Appreciation from Commander, USNR
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970714 - 971116  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 971117               Date of Discharge: 000428

 Length of Service (years, months, days):

         Active: 02 05 12
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 52

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.33 (3)    Behavior: 2.33 (3)                OTA: 2.66 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: ESWS

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

991221:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $538.00 pay per month for 2 months, restriction to BMU TWO and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

000229:  NJP for violation of UCMJ, Article 86: (2 Specification), Unauthorized absence, violation of UCMJ Article 134: Incapacitation for performance of duties through prior wrongful indulgence of intoxicating liquor or any drug, violation of UCMJ Article 87: Missing movement.
         Award: Forfeiture of $503.00 pay per month for 2 months, restriction to BMU TWO and extra duty for 45 days, reduction to E-1. Appealed 000229. Appeal denied 000313.

000301:  Retention Warning: Advised of deficiency (Violation of Article 86: Unauthorized Absence from 0700, 000224 to 1600, 000224; and from 0700, 000225 to 0800, 000225. Violation of Article 87: Missing movement of Beach Party Team THREE on 000224 at 0700. Violation of Article 137: Incapacitation for performance of duties through prior wrongful indulgence of intoxicating liquor.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000327:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.
000327:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements to the Administrative Board or to the Separation Authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation

000331:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure. Commanding Officer’s comments (verbatim): [OSSR P_ (Applicant) satisfies the requirements for both Separation by Reason of Alcohol Abuse Rehabilitation Failure and Separation by Reason of Misconduct - Pattern of Misconduct. He voluntarily withdrew from and therefore failed to complete a rehabilitation treatment program. This command was notified by MS2 W_/ARD Norfolk on 000316 regarding his withdrawal. Additionally OSSR P_ (Applicant) violated a page 13 dated 000301 that specifically required acceptance of Level III treatment as corrective action. OSSR P_ (Applicant) has two NJP convictions, dated 000229 and 991221, and these are considered adequate justification for Separation by Reason of Misconduct - Pattern of Misconduct. The entire chain of command attempted to help OSSR P_ (Applicant) with his various problems, the least of which is his seeming inability to arrive at work in the morning on time and sober. He was counseled by the command DAPA and evaluated by CAAC. While in a restricted status the command DAPA made daily contact with him to see how he was coping and to keep him apprised of the availability of a Level III treatment quota. He entered Level III treatment 000313 and as indicated above voluntarily terminated treatment 000316. OSSR P_ (Applicant) has become an administrative and disciplinary burden to this command. His presence here is disruptive and continues to impede our effort at maintaining good order and discipline. Based on his poor performance and inappropriate behavior, I strongly recommend OSSR P_ (Applicant) be discharged from the Navy with service characterized as Other Than Honorable.]

000412:  Commander, Amphibious Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000428 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: The Applicant requests his discharge characterization be changed to honorable so he can get a better job. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested by the Applicant. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Relief denied.

T here 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, a positive employment record, documentation of community service and certification of non-involvement with civil authorities are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. Relief denied.

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 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 “ 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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