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NAVY | DRB | 2003_Navy | ND03-00039
Original file (ND03-00039.rtf) Auto-classification: Denied


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

ex-ABEAR, USN
Docket No. ND03-00039

Applicant’s Request
The application for discharge review, received 20021002, 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 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted (verbatim)

1. Dear DRB (or) BCMR: The following issues are the reasons I believe my discharge should be upgraded to a General Under Honorable Conditions. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting (1) my discharge was based on many offense, but they were mostly only minor offenses, (2) My alcohol addiction impaired my ability to serve, (3) I was denied any kind f treatment for my addiction on my last command. If I was provided treatment for my addiction I may have been able to successfully complete my military career, and I might have been able to live a more productive life after my separation from the military. I am currently enrolled and attending a therapeutic community treatment center in a nine month program as ordered by the Board of Pardons and Paroles for the State of Texas Department of Criminal Justice Division. I will be at the address listed below until 2002 Dec. 11, after Dec I can be reached at the address listed above. Thank you for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter of recommendation, dated August 22, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891031 - 900423  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900424               Date of Discharge: 910904

 Length of Service (years, months, days):

         Active: 01 04 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12 1/2           AFQT: 35

 Highest Rate: ABEAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.30 (2)    Behavior: 2.30 (2)                OTA: 2.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900426:  Applicant briefed on Navy's policy of drug and alcohol abuse.
901115:  Applicant failed to meet physical readiness standards.

910105:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly on 901224 which conduct was of a nature to bring discredit upon the Armed Forces, (2) Wrongfully communicate to others racially offensive language, to wit: “stupid niggers and dumb peasants and dumb niggers” on 901224.
         Award: Forfeiture of $250 per month for 2 months, restriction for 20 days. No indication of appeal in the record.
910105:  Retention Warning from USS NIMITZ (CVN 68): Advised of deficiency (Drunk and disorderly on 901224, wrongfully communicate to others racially offensive language as evidenced by CO’s NJP dated 910105.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 910124:  NJP for violation of UCMJ, Article 86 (6 specs): Fail to go to appointed place of duty on 0615, 910110, 0615, 910113, 0615, 910117, 0615, 910118, 1800, 910118, and 0615, 910124, to wit: restricted men’s muster with master-at-arms.
         Award: Bread and water for 2 days. No indication of appeal in the record.
910330:  Applicant offered opportunity to participate in Level II Alcohol Rehabilitation Treatment Program and Applicant accepted.
910626:  NJP for violation of UCMJ, Article 92: Derelict in the performance of duties, in that negligently failed to properly stand the Post 12 watch by failing to remain awake on 910530.
         Award: Forfeiture of $150 per month for 1 month, restriction for 20 days. No indication of appeal in the record.
910626:  USS NIMITZ (CVN 68) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. [Extracted from Commanding Officer’s message dated 910711.]
910701:  Applicant found to be alcohol dependent (second stage). [Extracted from Commanding Officer’s message dated 910711.]
910706:  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 obtain copies of the documents used to support the basis for the separation and to make a statement. [Extracted from Commanding Officer’s message dated 910711.]
910711:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910716:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910718:  NJP for violation of UCMJ, Article 86 (11 specs): (1-7) Unauthorized absence from appointed place of duty on 910629, 910703, 910704, 910705, 910706, 910711, 910714, to wit: restricted men’s muster, (8-11) Unauthorized absence from appointed place of duty on 910702, 910709. 910711 and 910714, to wit: EMI musters.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910904 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 states his discharge was based on many offenses, but they were mostly minor offenses.

The Applicant was discharged for an established pattern of misconduct. Although in the Applicant’s eyes they were minor they were significant enough for his former Commanding Officer to conduct Non-Judicial Punishment (NJP) on four occasions. Additionally, after the first NJP the Applicant was issued a retention warning that erased passed misconduct and provided the Applicant with a misconduct free service record provided he could refrain from committing additional infractions of the UCMJ. The Applicant failed to comply with the conditions of the retention warning and was found guilty of additional misconduct. The discharge was proper and equitable. Relief denied.

Issue 2. The Applicant states his alcohol addiction impaired his ability to serve.

The Board agrees with the Applicant’s assessment of the effects of his alcohol addition on his military career. Unfortunately alcohol addiction does not mitigate the Applicant’s misconduct. The Applicant was justifiably held accountable for his behavior. Relief denied.

Issue 3. The Applicant states he was denied any kind of treatment for his addiction that may have made it possible for him to complete his military career and live a more productive life after the separation.

The Commanding Officer, USS Nimitz recognized the Applicant’s alcohol dependence and offered him level II alcohol rehabilitation treatment on 19910330, prior to separation, and the Applicant accepted. If additional treatment was required it was up to the Applicant to seek the care he needed and not the responsibility of the military. Additionally, the Applicant was not discharged for alcohol addiction he was discharged for a pattern of misconduct. The Board recognizes the Applicant is currently in a therapeutic community treatment center, commends him for his efforts, and wishes him all success. Unfortunately, these efforts are not justification for upgrading his discharge. Relief based on this issue is denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No errors or inequities were discovered in the execution of the Applicant’s discharge. 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 of documents to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
He 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. 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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