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NAVY | DRB | 2004_Navy | ND04-00524
Original file (ND04-00524.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND04-00524

Applicant’s Request
The application for discharge review was received on 20040210. 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 list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041001. 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. “I believe that my other than honorable discharge should be upgraded to honorable because I had a drinking problem and I had three alcohol related incidents which forced me to miss ship’s movement. However, I attended alcoholic anonymous classes on board the DWIGHT D. EISENHOWER but was discharged from the program due to my misplacement of identification. That part of my life is over, for I was very young and foolish. I feel that I am ready to finish my full term of twenty years in the U.S. Navy and help defend my country once more. Even though I had some problems, I always performed my duties with honor and respect. I am willing to start all over in boot camp again if that is what it takes. I will also be willing to appear in Washington, D.C if needed to obtain a clean record.”
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)     940315 - 940327  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 940328               Date of Discharge: 950903

 Length of Service (years, months, days):

         Active: 01 05 05 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 month extension)

Education Level: 12                        AFQT: 39

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.20 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM w/Bronze Star

 Days of Unauthorized Absence: 2

 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 :

940805:  NJP for violation of UCMJ, Article 92: (2 Specifications), Fail to obey lawful order/regulation, violation of UCMJ Article 91: Insubordinate conduct toward a non-commissioned officer, petty officer, or warrant officer.
         Award: Forfeiture of $192.00 pay per month for 1 month, correctional custody for 7 days. No indication of appeal in the record.

941020:  To UA, 941020.

941021   Surrendered onboard USS DWIGHT D EISENHOWER (CVN-69), 941021 (1 day).

941113:  Civil Conviction: [General District Court (Traffic) Norfolk, VA] for driving under the influence.
 Sentence: $500.00 fine ($300.00 suspended upon successful completion of ASAP), 6 months suspension of operators license, 4 months jail (suspended), ASAP, $26.00 court cost.
941116:  NJP for violation of UCMJ, Article 86: UA from unit from 0900, 941020 to 2000, 941020, violation of UCMJ Article 87: Missed ships movement, violation of UCMJ Article 134: Drinking underage.
         Award: Forfeiture of $416.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
950301:  Medical officer’s evaluation states alcohol dependence, recommended Level III.

950514:  To UA, 0700 950514.

 950515:  Surrendered onboard USS DWIGHT D EISENHOWER (CVN-69) 0700, 950515 (1 day).

950713:  NJP for violation of UCMJ, Article 111: Operate a vehicle while drunk, on or about 950703; violation of UCMJ Article 134: Drinking underage, on or about 950703.
         Award: Forfeiture of $427.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
950718:  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 all serious offenses under the UCMJ in your current enlistment and misconduct due to civilian conviction as evidenced by your civilian conviction in Norfolk, Virginia, General District Court (Traffic) on 941020.
950718:  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.
950721:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

950815:  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 19950903 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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 contends that his misconduct was the result of his alcohol abuse and his immaturity. Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his alcohol abuse. The Applicant’s allegations that he was denied assistance and counseling for his personal problems do not refute the presumption of regularity in this case. On the contrary, three separate nonjudical punishment proceedings for violations of UCMJ Articles 86, 87, 91, 92, 111, and 134 marred the Applicant’s service record. The evidence of record does not demonstrate that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.
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 92, violation of a lawful general order, 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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