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NAVY | DRB | 2002_Navy | ND02-01224
Original file (ND02-01224.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND02-01224

Applicant’s Request
The application for discharge review, received 020828, 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 030722. 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. I served honorably in combat.

2. I had a prior honorable discharge.

3. My ability to serve was impaired because of marital problems after my wife kidnapped my son.

4. My conduct and efficiency ratings were mostly pretty good.

5. I received awards and decorations.

6. I received letters of commendation.

7. I had combat service.

8. My record of promotions showed I was generally a good servicemember.

9. I was close to finishing my tour that it was unfair to give me a bad discharge.

10. I have been a good citizen since discharge.

11. My record of NJP's/Article 15's indicates only isolated or minor offenses.

12. My record of AWOL/UA indicates only minor or isolated offenses.

13. My ability to serve was impaired because of marital and family problems.

14. Personal problems impaired my ability to serve.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USNR              860715 - 870115  HON
                  USN                       870623 - 900521  HON

 Period of Service Under Review :
Date of Enlistment: 900522               Date of Discharge: 960216

 Length of Service (years, months, days):

         Active: 05 08 25
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (22 month extension)

 Education Level: 10                        AFQT: 69

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.58 (8)    Behavior: 3.38 (8)                OTA: 3.71

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, FMF (2), NUC, CAR, SSDR (3), SASM, NDSM

 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 :

900521:  Reenlisted USN for 4 years at 2D MARDIV FMF Clinic.

940522:  Applicant extended enlistment for 22 months.

 941122:  Retention Warning: Advised of deficiency (Receipt letter of indebtedness for failure to make payments on merchandise bought on credit at the NEX. Should your misconduct continue, you will create an adverse pattern of misconduct which cannot be tolerated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 950407:  Retention Warning: Advised of deficiency (Failure to meet the required military responsibilities and performance of a third class petty officer. Should your misconduct continue, you will create an adverse pattern of misconduct which cannot be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
950622:  NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on 950503, to wit: by saying "she was fucking with him and that he wanted her to keep the fuck out of his business.”
         Award: Reduction to HN. Reduction suspended for 6 months. No indication of appeal in the record.
951127:  Applicant to Naval Alcohol Rehabilitation Center. Initial Diagnosis: Axis I: Alcohol dependence with physiological dependence, nicotine dependence. Axis II: No diagnosis. Axis III: Exceeds USN height/weight and body fat standards, compulsive overeating, pseudofolliculitis.
951203:  Applicant discharge from Naval Alcohol Rehabilitation Center. Final Diagnosis: Axis I: Alcohol dependence with physiological dependence, nicotine dependence, cannabis dependence. Axis II: No diagnosis. Axis III: Exceeds USN height/weight and body fat standards, compulsive overeating, pseudofolliculitis.
951204:  Applicant evaluated as a treatment failure due to violation of rules and regulations.

951211:  Vacate suspended reduction to HN due to subsequent unauthorized absence.

 960109:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on 0200-0400, 951203 and 0730-0900, 951219, violation of UCMJ, Article 92: Fail to obey lawful order on 951203, to wit: to give a command directed urinalysis.
         Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to HA. No indication of appeal in the record.
960110:  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 the findings at Commanding Officer's nonjudicial punishment that you were disrespectful towards a commissioned officer; and by reason of alcohol rehabilitation failure as evidenced by your disenrollment from Level III alcohol rehabilitation treatment.
960110:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
960116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of alcohol rehabilitation failure. Commanding Officer’s comments (verbatim): [HA J_’s (Applicant) continued disregard for military rules and regulations and his recent failure of a Level III alcohol treatment programs is not consistent with this command or of the Navy. Retention of HA J_ (Applicant) would be detrimental to good order and discipline and to the operation of this command. I strongly recommend discharge from the United States Navy with a discharge characterization of other than honorable.]

960206:  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 960216 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).

The Board agrees the Applicant had very good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate his offenses. The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly or that he should not be held accountable for his actions. While he may feel that his marital and family problems contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The Board disagrees with the Applicant’s assertion that his offenses were minor and isolated. His service record is marred by retention warnings and award of non-judicial punishment (NJP) on two separate occasions for offenses triable by court-martial thus substantiating the misconduct . Relief denied. For the Applicant’s edification, Sailors guilty of committing similar offenses normally receive a discharge characterization of under other than honorable conditions.

The NDRB recognizes that serving in the Navy is very challenging and can be dangerous especially during combat. Our country is fortunate to have men and women willing to accept the risks and hardships in order to serve their country. However, it must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous three years of honorable service

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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living an alcohol free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 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 9, effective
22 Jul 94 until 02 Oct 96, 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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