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NAVY | DRB | 2004_Navy | ND04-00136
Original file (ND04-00136.rtf) Auto-classification: Denied


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


ex-ADAN, USN
Docket No. ND04-00136

Applicant’s Request
The application for discharge review was received on 20031030. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
1. “My discharge was inequitable because it was based on two similar incidents in 27 months of service with no other adverse action.”

 2. “Dear Members of the Board:
I am writing you in regards to my discharge from the Navy in 1994. I received an Other Than Honorable Discharge and I'm requesting an upgrade to Honorable Discharge. As my record will show I was number one airman in my class at AD "A" school in NATTC, Millington, TN and graduated top of the class. My next duty station after "A" school as H-3 FRAMP at HC-1 located at NAS North Island in which i performed so well (my "A" school included) that I was frocked to AD-3. My first permanent duty station was HC-2 located at NAS Norfolk. I was doing great in the squadron for a period of seven months until some really had decisions were made on my part. I was caught drinking and driving under age on base by the shore patrol. Because of that I had to attend Alcohol Awarness Classes on base 3 days a week for a period of one month. About half way through the program, again, a bad decision on my part, I got a DUI outside of the base and that was the clincher for my Navy career. I know that I made some bad decisions and I willingly accept full responsibility for what I have done. I have grown in wisdom and maturity since then and I realize that I was young and stupid and made some very bad decisions. I have recently graduated, with honors, from Westwood College of Aviation Technology in Bloomfield, CO. I now have my FAA Airframe and Powerplant license and certified by the federal government to be an aircraft mechanic within the aviation industry. The aviation industry is very hard to get into, especially if you have an Other Than Honorable Discharge on your record. Aviation is my life and chosen vocation. The Navy made me realize that and gave me a good start and a solid foundation to build on. That is why I have pursued schooling in this field so many years later. Most of the companies that I've interviewed with won't even consider me because of my discharge. I’m asking you, no, pleading with you, to please consider my request for an up grade. I am humbly asking that I be given a second chance to achieve my dreams and goals of becoming a vital part of the aviation industry. I have learned my lesson and have grown in wisdom and maturity since that period of my life over nine years ago. You, the board members, can help me achieve those dreams and goals. Thank you for your time and consideration.
Very Respectfully,

 A_ J_ B_ ( Applicant )”


Additional issues submitted by Applicant’s representative American Legion:

 3. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.
Review of the service record reflects that this former member maintained satisfactory overall performance markings of 3.8 and earned the NDSM, SASM w/star and NER. On 940324, he was awarded NJP for VUCMJ, Art. 111 (DUI) and referred to Level II alcohol rehabilitation treatment. Two weeks later he received another DUI. His CO recommended him for a GD, despite his misconduct, due to his solid work performance. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 3620600.
Essentially, as noted on DD Form 293 and attachments, this Applicant is requesting that his discharge be upgraded because his misconduct was isolated incidents in an otherwise creditable service period and because of his post-service conduct. In support of his contentions, he has submitted 10 pages of additional documentation attesting to his good post-service character, hard work, and educational pursuits for the Board’s consideration.
The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).
This case is now respectfully submitted for deliberation and disposition.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from R_ S_ AFCM(AW/NAC) ret, undated (2 copies)
Character reference from B_ W_ B_, undated (2 pages)
 Character reference from Dr. N_ A_ J_, National Director of Education, dated October 23, 2003
Character reference from V_ D_, Senior Instructor, Examiner, dated October 23, 2003
Applicant’s Aviation ID card
Applicant’s Associate of Occupational Studies degree from Westwood College of Aviation Technology, dated February 21, 2003
Applicant’s student transcript from Westwood College of Aviation Technology
Applicant’s resume
Copy of DD Form 214 (member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910822 - 920615  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 920616               Date of Discharge: 940920
Length of Service (years, months, days):

          Active: 02 03 05
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 41
Highest Rate: AD3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.80 (2)    Behavior: 3.40 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), 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 3630600.
Chronological Listing of Significant Service Events :

940324:  NJP for violation of UCMJ, Article 111: Driving under the influence.
 Award: Forfeiture of ½ month of pay for 2 months (suspended 6 months), reduction to ADAN (suspended 6 months). No indication of appeal in the record.
940622:  Command notified of Applicant termination from the CAAC Level II program on 940620 due to his failure to comply with the program requirements.
940629:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse, rehabilitation failure as evidenced by service record.
940629:  Applicant advised of his 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. Applicant did not object to separation.
940802:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. Commanding Officer’s comments: Petty Officer B_ (Applicant) has proven himself both a burden and liability to this command. He was convicted of a serious offense (DUI) in February 94 and was then granted the opportunity to attend Level II Alcohol rehabilitation treatment. Two weeks after enrollment into the program, SNM was arrested for DUI again. SNM has shown no intention of resolving his alcohol problem and has thus proven to be inadaptable to a navy lifestyle. Despite these serious problems, SNM has proven to be a solid performer in the workplace and its therefore recommended for a general (under honorable conditions) discharge.
940819   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 19940920 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issue 1. The Applicant states his discharge was based on two similar incidents in “27 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for driving under the influence, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

Issue 2. The Applicant contends that his problems in the Navy can be attributed to his being “young and stupid.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

Issue 3. 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct 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 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 – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, driving under the influence, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.
E. 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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