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NAVY | DRB | 2004_Navy | ND04-00654
Original file (ND04-00654.rtf) Auto-classification: Denied


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



ex-SR, USN
Docket No. ND04-00654

Applicant’s Request
The application for discharge review was received on 20040309. The Applicant requests the characterization of service received at the time of discharge changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Columbia, SC. 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 obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051003. After a thorough review of all available records, supporting documents, facts, circumstances unique to this case, and testimony, no inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the characterization of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
SPN CODE HKA
THIS IS THE CORRECT SHELL FOR Misconduct - Pattern of misconduct. 890821 - 910814 ONLY.

THE FINDING FOR MISCONDUCT, (3630600) EFFECTIVE 890821 - 910814 ONLY. THE SPN CODE IS EFFECTIVE 860911 - 930627.
 A general discharge is written UNDER HONORABLE CONDITIONS (GENERAL).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Issues submitted by the Applicant’s American Legion representative at the time of the Applicants personal appearance hearing supersede those submitted originally on Form DD-293.
1. Equity – This former member opines that youth and immaturity sufficiently extenuated his misconduct of record to warrant the Board’s relief.

2. Equity – This former member requests that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.


 Additional issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION , PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):

“1. XXXXXXXXXXXXXXXXXXXXX.”

 Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION, PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):
“1.XXXXXXXXXXXXXXXXXXXXXX.”

Submitted by Applicant subsequent to submission of application:

“1. XXXXXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the service record, the following additional documentation (submitted by the Applicant) was considered:
Letter from C.A.R.E Center, dated September 27, 2005
Character reference from S_ A. B_ and C_ T. B_, undated
Power of Attorney from Applicant to J_ P_ (5 pages), dated October 14, 2004
Power of Attorney from Applicant to B_ P_ (5 pages), dated October 14, 2004
Neuropsychological evaluation (7 pages), dated November 29, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     871121 - 880605  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880606               Date of Discharge: 910722

 Length of Service (years, months, days):

         Active: 03 01 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 27

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.87 (3)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, LofC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880609:  Applicant acknowledged understanding of Navy’s drug and alcohol policy.
890313:  Commanding Officer, USS Orion (AS18) advised applicant he had been evaluated as an alcohol abuser. Failure to cooperate and complete Level I Drug and Alcohol Abuse Program may result in grounds for separation.

890331:  Retention Warning: Advised of deficiency (Executive Officer investigation for fighting while under the influence of alcohol, December 1988), notified of corrective actions, assistance available, advised of consequences of further deficiencies, and issued disciplinary and discharge warning.

 890512:  Applicant awarded a certificate of training for the successful completion of the Navy Alcohol and Drug Safety Action Program (NADSAP).

900131:  Recommendation for advancement withdrawn. “SA P_ is a burden to his division and supervisors. He displays minimal respect for authority and has regressed in virtually all areas. SA P_ has three counseling sheets concerning his temperament and actions and he is continuing to experience financial difficulties.”

xxxxxx:  Page 13 entry: Applicant acknowledged having reviewed derogatory Enlisted Performance Evaluation Report for period from 890201 to 900131. Applicant chooses not to make a statement.

900407:  Applicant charged with violation of UCMJ Article 134 (drunk and disorderly).

900413:  Applicant charged with violation of UCMJ Article 92 (disobey a petty officer).

900420:  NJP violation of UCMJ, Article 92: Willfully disobey a petty officer, on 900413 and Article 134: Drunk and disorderly conduct on 900407.
         Award: Restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.
900424:  Retention Warning: Advised of deficiencies (willful disobedience of a petty officer, drunk and disorderly conduct), notified of corrective actions, assistance available, advised of consequences of further deficiencies, and issued disciplinary and discharge warning.

900424:  Applicant evaluated by CAAC and found to be psychologically dependent on alcohol. Applicant recommended for Level III, however due to his lack of insight, and his long record of emotional and mental issues, it is recommended Applicant be separated and treated in the Veteran’s Administration, due to a need for possible long-term psychiatric care.

 900516:  Drug and Alcohol Abuse Report: CAAC and physician found Applicant dependent and recommended for separation via VA hospital. Commanding Officer recommended separation via VA hospital. Comments: SR P_ (Applicant) has a below average work record. He has poor stress and anger management skills. He has a history of combative behavior. His potential for future naval service is very poor.

900813:  Applicant charged with violation of Article 128 (assault consummated by battery).

900814:  Applicant unauthorized absent from place of duty.

900828:  Applicant unauthorized absent from place of duty.

900829:  Applicant unauthorized absent from place of duty.

900830:  NJP for violation of UCMJ, Article 128: Assault on 900813, to wit: unlawfully strike EM3 in the face with fist.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

900909:  Applicant unauthorized absent from place of duty.

900915:  Applicant unauthorized absent from place of duty.

900922:  Applicant unauthorized absent from place of duty.

900923:  Applicant unauthorized absent from place of duty.
901010:  Medical Department USS ORION (AS 18): Assessment: (1) Alcohol dependence. (2) Situational problems due to alcohol dependence. (3) Mild hypomanic symptoms. (4) Not suicidal or homicidal, in control of behavior. Plan: (1) Attempt to make arrangements to talk to FSC (on liberty risk). (2) Await resolution of legal issue then Level III vs. Level III via VA. (3) Follow-up for worsening or failure to improve.

901011:  NJP for violation of UCMJ, Article 86 (7 specs): Failing to go to appointed place of duty on 900814, 900828, 900829, 900909, 900915, 900922, and 900923.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
901015:  Medical Department USS ORION (AS 18): Assessment: Adjustment disorder/personality disorder exacerbated by stress. Plan: Psychiatry appointment at 1030 on 901016.

901016:  Psychiatry Department: Impression: Alcohol Dependence. Recommendation: Return to full duty. Psychologically fit. Weekly supportive counseling may help deal with situational problems until separation. Recommend Level III treatment following administrative separation.
901101:  Commanding Officer, USS ORION (AS 18) notified Applicant of intended recommendation for discharge; if approved characterization may be under other than honorable conditions by reason of alcohol rehabilitation failure, misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by nonjudicial punishments on 900420, 900830, and 901011.
901101:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
901218:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant was not an alcohol rehabilitation failure and does not warrant separation for alcohol rehabilitation failure. The Board also found by a unanimous vote that the Applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910107:  Commanding Officer, USS Orion (AS 18) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

910225:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910307:  Applicant transferred from USS Orion (AS 18), to TPU Philadelphia awaiting discharge.

910407:  Applicant unauthorized absent from place of duty.

910413:  Applicant unauthorized absent from place of duty.

910414:  Applicant unauthorized absent from place of duty.
910422:  NJP for violation of UCMJ, Article 86:Absent from appointed place of duty, violation of UCMJ, Article 92: Failure to obey orders or regulations.
         Date of offenses: 910407, 910413, and 910414.
         Award: Forfeiture of $156.24 per month for 1 month (7 days pay), restriction for 14 days. No indication of appeal in the record.
910430:  Applicant advised of right to 30-days in-patient treatment at a VA hospital and elected treatment.

 910611:  Applicant unauthorized absent from place of duty.

 910613:  Applicant re-advised of right to 30-days in-patient treatment at a VA hospital and declined treatment.
910626:  Applicant unauthorized absent from place of duty.

910628:  Applicant unauthorized absent from place of duty.

910708:  Applicant unauthorized absent from place of duty.

 910711:  NJP for violation of UCMJ, Article 86 (4 specs): Absent from appointed place of duty on 910611, 910626, 910628, and 910708.
         Award: Restriction for 7 days. No indication of appeal in the record.

910722:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910722 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, testimony, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. The Applicant’s service was marred by five nonjudicial punishment proceedings for violations of UCMJ Article 92 (failure to obey, 2 specifications), Article 86 (unauthorized absence, 12 specifications), Article 134 (drunk and disorderly), and Article 128 (assault on another service member). Each violation of Articles 92 and 128 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial. A pattern of misconduct, the reason for the Applicant’s discharge, is defined as more than one nonjudicial punishment during a single enlistment. There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separation under these conditions generally results in a characterization of service of under other than honorable conditions. The Board could discern no inequity and therefore considered his discharge equitable. Relief denied.

The Applicant contends that he was not responsible for his behavior because of his youth and immaturity. The Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions. The facts are that the applicant entered the service at 18 years of age, as do many recruits. Most go on to serve their country with honor and integrity thus earning an honorable discharge. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged youth and immaturity. The record clearly reflects his willful misconduct, demonstrating 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. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of obtaining medical and educational benefits, or enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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, and certification of non-involvement with civil authorities. The Applicant submitted a letter from a neighbor and Mrs. P_, the Applicant’s Mother, testified on his behalf. However, as admitted by the Applicant during his testimony the quality of his post service has been marred by three DUI convictions and an arrest for larceny as well as sporadic substance abuse. After careful consideration of the testimony and all available documentation, the Board determined relief based on post service conduct is unwarranted.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT A PATTERN OF MISCONDUCT.

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

 C. 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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