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NAVY | DRB | 2004_Navy | ND04-00780
Original file (ND04-00780.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND04-00780

Applicant’s Request
The application for discharge review was received on 20040406. 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 20050201. 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 - Pattern of 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 would like to have my rentry code changed, and have my discharge changed from other than honorable to honorable. I am young healthy, and have 30+ years until I can retire. I am actively pursuing a job in Law inforcement. While enlisted in the Navy I didn’t relize the outcome of my actions and would do anything to chance the outcome. Had I enlisted three years later, I would still be in the Navy to this day. I still think the Navy is the finest place to be, I will regret ever getting discharged for a long, long time. Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Employment Verification Letter dated March 23, 2004
Criminal Record Personal Information Release Form dated March 15, 2004
Applicant’s DD Form 214
Copies from Service Record (39pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890629 - 890801  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890802               Date of Discharge: 910702

 Length of Service (years, months, days):

         Active: 01 11 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 29

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)             Behavior: 3.10 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(with bronze star), SSDR, NUC

 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 :

900123:  Retention Warning from [Attack Squadron SIXTY-FIVE]: Advised of deficiency (Drinking while underage and operating a vehicle while drunk exhibit conduct of a nature to bring discredit upon the Armed Forces), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900123:  NJP for violation of UCMJ, Article 134: Drinking while underage.
         Award: Forfeiture of $349.50 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

900330:  Medical Evaluation: Applicant diagnosed alcohol dependent, recommended Level II CAAC treatment.

900615:  Retention Warning from [Attack Squadron SIXTY-FIVE]: Advised of deficiency (Multiple alcohol-related offenses in a six-month period), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900615:  NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct and drinking while underage.
Award: Forfeiture of $405.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
901029:  NJP for violation of UCMJ, Article 134: Drinking while underage and drunk and disorderly conduct.
         Award: Forfeiture of $362.00 pay per month for 2 months, restriction for 45 days, reduction to E-1. No indication of appeal in the record.

910601:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty; violation of UCMJ, Article 112: Drunk while on a liberty risk status.
         Award: Restriction for 27 days. Restriction to expire at 0700, 910628 and administrative separation to begin upon arrival onboard NAS Ocean (Homeport). No indication of appeal in the record.
910610:  Medical Officer’s evaluation: Applicant doesn’t feel he has [an alcohol] problem and desires no VA treatment..
910610:  Attack Squadron SIXTY-FIVE notified Applicant of intended recommendation for discharge with a least favorable characterization under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by NJP’s dated 900123, 900615, 901029, 910601.
910610:  Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

910613:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910618:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910702 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. 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. T he Applicant’s service was marred by alcohol related misconduct, including underage drinking, drunk driving, disorderly conduct and drunkenness in a liberty risk status. This misconduct resulted in four separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 112, and 134. The medical record also indicates that at some point, the Applicant completed Level II CAAC treatment to resolve these alcohol problems. Despite this treatment, the Applicant’s drinking and subsequent misconduct continued, ultimately resulting in his discharge. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
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, and credible evidence of a substance free lifestyle. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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.

There is no requirement or law that grants recharacterization solely on the issue of improving employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

 D. 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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