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NAVY | DRB | 2003_Navy | ND03-00978
Original file (ND03-00978.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND03-00978

Applicant’s Request
The application for discharge review was received on 20030512. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “The fact that I was in process to go to CAC Level II for treatment, and never received help, the Air dept. quickly had me discharged, so I wouldn’t receive any benefits. I was a month shy or my 2 year mark (half of service time) and did not no it, they knew I would not get any benefits, let alone help for my drinking.”

2. “I’m considering going to the National Guard for a period just so I can go active duty in six months, but if the board helps me it would be a big help to me and I can go straight in active duty.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s application (DD Form 149) to the Board for Correction of Naval Records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     931112 - 931115  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 931116               Date of Discharge: 951007

 Length of Service (years, months, days):

         Active: 01 10 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)     Behavior: 2.9 (2)                 OTA: 3.0

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940222:  Counseled/ordered to refrain from acquiring, possessing, or consuming alcohol beverages of any kind, whether off base in the state of Washington, on base, or onboard any naval vessel, including USS NIMITZ while under 21 years of age. Advised of consequences of further deficiencies, and issued discharge warning.

941019:  NJP for violation of UCMJ, Article 86: Unauthorized absence from command directed urinalysis test on board EX PROTEUS.
         Award: Forfeiture of $850.00 pay per month for 1 month, extra duty for 30 days. No indication of appeal in the record.
950208:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence from 0700, 10 January 1995 until 0700, 11 January 1995 and going from appointed place of duty on or about 2330, 24 January 1995.
         Award: Forfeiture of $250 pay per month for 1 month, extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
950320:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 86 – unauthorized absence from 0700, 10 January 1995 until 0700, 11 January 1995 and going from appointed place of duty on or about 2330, 24 January 1995 ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950405:  Medical Department, USS NIMITZ: Member evaluated for alcohol abuse and meets DSMIV criteria. Recommend Level II. Member amenable.
950622:  Civil Conviction: Pierce County District Court, Gig Harbor, Washington for violation of RCW 46.61.502, driving while under the influence of an intoxicating liquor and/or drug.
 Sentence: $1000.00 fine, suspension of license for 90 days, and confined for a period of 1 year (360 days suspended).
950628:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your violation of the UCMJ, Article 111, drunken driving, on 21 January 1995; and by reason of misconduct due to civil conviction as evidenced by your prosecution on 22 June 1995 for driving while intoxicated.
950628:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950919:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and had committed misconduct due to a civil conviction, that the misconduct warranted separation, and recommended discharge with a General under honorable conditions.
        
950923:  NJP for violation of UCMJ, Article 86: Fail to go at time prescribed to appointed place of duty on 95SEP11; violation of UCMJ, Article 91 (2 Specs) Willfully disobey a PO1 on 95SEP11; violation of UCMJ, Article 92: Negligently derelict in the performance of duty on 95SEP11.
         Award: Forfeiture of $497 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
961004:  Medical Officer, USS NIMITZ: Applicant is an alcohol abuser without dependence. No treatment required. Medical Officer statement: “Based on patient interview & Health Record review, pt do not require a need treatment prior to separation.”
961006:  CO, USS NIMITZ (CVN 68) directed the Applicant's discharge with a General (Under Honorable Conditions) by reason of misconduct due to civil conviction.
951121:  Commanding Officer, USS NIMITZ, advised BUPERS of Applicant’s discharge having concurred with the Administrative Board which recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to commission of serious offense and misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951007 with a General (Under Honorable Conditions) for misconduct due to civil conviction (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).

Issues 1-2: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions as well as a civil conviction thus substantiating the misconduct . The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his alcohol abuse. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief. Relief is therefore denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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.

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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