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NAVY | DRB | 2004_Navy | ND04-00536
Original file (ND04-00536.rtf) Auto-classification: Denied


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

ex-AMHAA, USN
Docket No. ND04-00536

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 or general/under honorable conditions. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region or a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. Subsequent to the application, the Applicant converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214. 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 received 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 - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I would like my discharge upgraded to “general under honorable conditions” or “Honorable” Discharge.

When I was discharged, my Commander had recommended a General Discharged due to hardship conditions. However, the discharge was returned by an office in Washington D.C. as “Other Than Honorable” Discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement from Applicant, undated
Applicant’s ltr of 050127

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860415 - 860609  COG
         Active: USN                        860610 - 900511  HON

 Period of Service Under Review :
Date of Enlistment: 900512               Date of Discharge: 930614

 Length of Service (years, months, days):

         Active: 03 01 03
         Inactive: None

 Age at Entry: 34                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: AMHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (6)    Behavior: 3.27 (6)                OTA: 3.27

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900512:  Applicant reenlisted for 4 years.

920529:  Medical Evaluation:
                  AXIS I: Avoidant personality
          AXIS II: Adjustment disorder with mixed emotional features (complicated bereavement)
                   AXIS III: Alcohol Abuse

920820:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 920717, violation of UCMJ, Article 112: Found drunk while on duty on 920717.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
921203:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 921006.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.
930112:  Medical Officer evaluation: Alcohol dependent. Recommend Level III.

930219:  Counseling and Assistance Center: Applicant completed Level II.

 930401:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.
930401:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to the separation.
93XXXX:  Applicant’s statement (undated).

930405:  Applicant waived right to an Administrative Discharge Board.

 930407:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): AMHAA M_’s (Applicant’s) commission of a serious offense makes him unsuitable for future Naval service. AMHAA M_ (Applicant) completed Level II Alcohol program in February of 1993. Although his participation was fair and he shows a fair prognosis for continued rehabilitation he continues to be an administrative burden. AMHAA M_ (Applicant) requires close supervision to perform even menial tasks. I strongly recommend that AMHAA M_ (Applicant) be given a General discharge vice an Other Than Honorable, since his problems stem from alcohol abuse and not from blatant disciplinary violations.

930601:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930609:  Applicant declined VA Hospital treatment.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930614 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 “Commander had recommended a General [discharge] due to hardship conditions” as the basis for his issue. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86 and 112 of the UCMJ. Violations of Article 112 are serious offenses. The Applicant was diagnosed by competent medical authority as being alcohol dependent and he did complete Level II treatment. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of 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, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural 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. 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 sufficient documentation for the Board to consider. 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 5, effective
05 Mar 93 until 21 Jul 94, 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 112, drunk on duty, if adjudged at a Special or General Court-Martial.

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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