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NAVY | DRB | 2003_Navy | ND03-00219
Original file (ND03-00219.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND03-00219

Applicant’s Request
The application for discharge review, received 20021122, 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 20031017. 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. However, the Board discovered an impropriety in the Applicant’s narrative reason for separation. The Board’s vote was four to one that the character of the discharge shall not change, but that the narrative reason for separation will change. The discharge shall change to: UNDER OTHER THAN HONORABLE CONDITIONS/COMMISSION OF A SERIOUS OFFENSE, authority: NAVMILPERSMAN, Article 1910- 142 (formerly 3630605), with separation code of “HKQ.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issue, as stated on the application:

 “1. While enlisted in the Navy I was diagnosed with alcoholism, after proper treatment at my first duty station, there was no support or follow up at my second and last duty station. I continued to drink and went down hill from there. I have since gotten help for my disease and am now well on my way to have a great family and career. I fault no one and I take full responsibility for my actions while in the service. All I ask for is a general discharge on my record. Thank you for your time.”

 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: USNR (DEP)     950918 – 960626  ELS
 980120 - 980802  COG
          Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980803               Date of Discharge: 000229

 Length of Service (years, months, days):

         Active: 01 06 26
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 11                        AFQT: 42

 Highest Rate: ENFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 3

*No Marks Available for review.

 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 :

990224:  NJP for violation of UCMJ, Article 92: Wrongfully contributing alcohol to a minor, violation of UCMJ, Article 134: Disorderly conduct of a nature to bring discredit upon the Armed Forces.
Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days (15 day suspended for 6 months), reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.
990730:  NJP for violation of UCMJ, Article 86: Did on or about 990728 without authority absent himself from his place of duty, to wit: USS GUNSTON, located at Rota Spain and did remain so absent until on or about 990729, violation of UCMJ, Article 107: Did on or about 990625, with the intent to deceive, make a verbal statement to the Commanding Officer, to wit: Saying he was married and his wife’s name was A_ which was totally false and was then known by the said, FN G_, to be so false.
Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days (15 day suspended for 6 months), reduction to E-2. No indication of appeal in the record.
000222:  NJP for violation of UCMJ, Article 86: Did at NORSHIPCO Norfolk VA, on or about 000124, was absent without authority from USS GUNSTON HALL, and did remain so absent until 0715, 000127 (3 days).
Award: Forfeiture of ½ pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-1. No indication of appeal in the record.
000222:  USS GUNSTON HALL notified Applicant 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 all punishments under the UCMJ during the current enlistment and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ during the current enlistment.
000222:  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.

000225:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
Award: 3 days Bread & Water. No indication of appeal in the record.
000225:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct commission of serious offense as evidenced by all punishments under the UCMJ during the current enlistment and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ during the current enlistment.

000229:  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 20000229 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 characterization of service was proper and equitable, but that the narrative reason for separation assigned was not proper (C and D).

Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service. While he may feel that his alcohol dependence was a factor that contributed to his actions, 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 would be inappropriate. Relief denied.

Misconduct due to a pattern of misconduct was the narrative reason for separation assigned. The Board discovered that the Applicant was not provided a retention warning during his service prior to initiation of administrative separation. Therefore, the Applicant was improperly processed for separation for misconduct due to a pattern of misconduct. However, the Applicant was properly processed for separation for misconduct due to the commission of a serious offense. The Applicant’s violation of UCMJ Articles 92 and 107 constituted serious offenses. No retention warning is necessary to be administratively separated for misconduct due to the commission of a serious offense. Therefore the Board found that misconduct due to commission of a serious offense is the proper and equitable narrative reason for separation in this case.

The Applicant’s discharge characterization accurately reflects his service to his country.
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. Relief not warranted.

The Applicant 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. 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 21 Aug 2002, 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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