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NAVY | DRB | 2002_Navy | ND02-01098
Original file (ND02-01098.rtf) Auto-classification: Denied


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

ex-SWCR, USN
Docket No. ND02-01098

Applicant’s Request
The application for discharge review, received 020801, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant 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 030515. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member proffers that his alcohol dependence contributed to and sufficiently extenuated his misconduct of record to warrant recharacterization of his service period to honorable.
2. (Equity Issue) This former member further requests that the Board include provisions 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:
Small business and DVBE certification, dated February 28, 2002
Letter from Employment Development Department, dated May 1, 2002
Contractors State License Board certificate, issued February 22, 2002
Certificate of Liability Insurance, dated March 1, 2002
Letter to Applicant from Southern Illinois University, dated August 19, 1999
(4 pages)
Fall semester, 1999 Southern Illinois University schedule
Certificate of completion of Computer Aided Drafting, dated December 3, 1992
Certificate of completion of Intermediate Excel 97, dated July 19, 2000
Certificate of completion of Quicken 99, dated July 5, 2000
Certificate of completion of Beg Docs 6.2, dated January 30, 1999
Certificate of completion of Intermediate HTML, dated January 9, 1999
Certificate of completion of Beginning HTML, dated June 13, 1998
Certificate of completion of Intermediate Word 7.0, dated July 25, 1998
Certificate of completion of Beginning Outlook 97, dated July 11, 1998
Certificate of completion of Beginning Excel 7.0, dated June 20, 1998
Certificate of completion of Int Hardware Systems, dated February 6, 1999
Certificate of completion of Beginning Hardware Systems, dated June 4, 1998
Certificate of completion of Adv Access 97, dated March 4, 1999
Certificate of completion of Intermediate Access 97, dated February 18, 1999
Certificate of completion of Beginning Access 97, dated February 4, 1999
Certificate of completion of System Admin for SQL Server 6.5, undated
Certificate of completion of Secure Web Access using Microsoft Proxy Server 2.0, undated
Certificate of completion of Supporting Microsoft Windows NT 4.0 Core Technologies, undated
Certificate of completion of Internetworking Microsoft TCP/IP on Microsoft Windows NT 4.0, undated
Certificate of completion of Essentials of Networking, dated January 14, 1999
Certificate of completion of Administering Microsoft Windows NT 4.0, undated
Certificate of completion of Core Technologies of Microsoft Exchange Serve 5.0, undated
Certificate of completion of Creating and Managing a Web Server Using Microsoft Internet Information Server 4.0, undated
Letter from Regional and Continuing Education, dated November 10, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920619 - 930321  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930322               Date of Discharge: 961205

 Length of Service (years, months, days):

         Active: 03 08 14
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 10                        AFQT: 57

 Highest Rate: SWCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.10 (2)                OTA: 3.50        4.0 evals
 Performance: 2.67 (3)    Behavior: 1.00 (3)                OTA: 1.83        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (3), NER

 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 3630605.

 Chronological Listing of Significant Service Events :

931026:  Unauthorized absence (BAC 0.04%).
[Extracted from CAAC screening letter dated 961009.]
940113:  Applicant evaluated as an alcohol abuser.

940125:  Applicant dis-enrolled from Level II treatment as a treatment failure.

940202:  Retention Warning: Advised of deficiency (Failure of Level II treatment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940311:  NJP for violation of UCMJ, Article 86 (3 specs): (1-2) Fail to go to appointed place of duty, (3) Unauthorized absence from place of duty violation of UCMJ, Article 117: Provoking words or gestures, violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $100 per month for 2 months, restriction for 30 days, reduction to SWCA. No indication of appeal in the record.
940311:  Retention Warning: Advised of deficiency (Commanding Officer's non-judicial punishment on 11 March 1994 for violation of UCMJ, Article 86, 117, and 128.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940328:  Applicant received alcohol screening at CAAC Rota, Spain with impression of alcohol abuse, no further treatment recommended. [Extracted from CAAC screening letter dated 961009.]

940826:  Vacate suspended forfeiture of $100 per month for 2 months, restriction for 30 days, reduction to SWCA awarded at CO's NJP dated 940311 due to continued misconduct.

940826:  NJP for violation of UCMJ, Article 86: Go from appointed place of duty, violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation.
         Award: Forfeiture of $200 per month for 2 months, restriction for 30 days, reduction to SWCR. No indication of appeal in the record.
940826:  Retention Warning: Advised of deficiency (CO's NJP for violation of UCMJ Articles 86 and 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
941010:  Applicant completed Level II treatment with a diagnostic impression of alcohol dependency and an accompanying recommendation that if retained, attend inpatient Level III treatment.
[Partial extracted from CAAC screening letter dated 961009.]
960927:  NJP for violation of UCMJ, Article 90: Disobey an order on 960629, violation of UCMJ, Article 91: Disrespectful in language and deportment, violation of UCMJ, Article 134: Incapacitated for duty on 960629.
         Award: Forfeiture of $437 per month for 2 months, restriction for 60 days, reduction to SWCR. No indication of appeal in the record.
960927:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due a pattern of misconduct, and due to the commission of a serious offense as evidenced by all punishments under the UCMJ, in your current enlistment.
960927:  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.
961009:  CAAC Screening Results and Treatment Recommendations: Applicant appears to be psychologically dependent on alcohol with some symptoms of physiological dependency. Recommend schedule for Level III treatment at an inpatient rehabilitation facility. Applicant should be referred to a clinical psychologist to rule out emotional problems, and to medical to evaluate the need for detoxification and for a liver function test. Additionally, Applicant should attend counseling for unresolved grief issues and for financial counseling.
961009:  Applicant accepted inpatient treatment.

 961021:  Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct, and misconduct due to the commission of a serious offense.

961029:  Commander, U.S. Naval Activities, Spain 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 961205 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: Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. The Applicant’s discharge was proper and equitable and accurately reflects his service to his country. The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. Although the Applicant claims that his alcohol dependence contributed to his 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. An upgrade to honorable would be inappropriate. Relief denied.
Issue 2: 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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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