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NAVY | DRB | 2004_Navy | ND04-00868
Original file (ND04-00868.rtf) Auto-classification: Denied


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


FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND04-00868

Applicant’s Request
The application for discharge review was received on 20040506. 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 any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 - 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. “My misconduct was directly related to alcoholism. I have been active in AA and I can say that I have maintained sobriety for the past 11 years. I was not prepared at the time of my enlistment to properly deal with my disease.

I feel that my continued sobriety and unfailing support to my community and government has earned me the right to apply for this upgrade.”

 Representative submitted no issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900628 - 19900912               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900913             Date of Discharge: 19910712

 Length of Service (years, months, days):

         Active: 00 10 00
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       12 Days

 Age at Entry: 19

 Years Contracted: 4 (24 month extension)*

 Education Level: 12                                 AFQT: 93

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.6 (1)     Behavior: 2.6 (1)        OTA: 2.6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): 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 :

900917:  Applicant briefed on Navy's policy of drug and alcohol abuse.
901218:  CAAC screening recommended Level II treatment. [Extracted from CAAC evaluation dated 910417.]

910107:  Medical evaluation: Applicant found not dependent on alcohol, but should attend Level II treatment. [Extracted from CAAC evaluation dated 910417.]

910115:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order, by wrongfully consuming alcoholic beverages while under the legal drinking age of 21, on or about 901206, violation of UCMJ, Article 111: Drunken or reckless driving, a passenger car, while impaired by alcohol (BAC . 193), on or about 901206.
         Award: Forfeiture of $300 per month for 2 months. No indication of appeal in the record.
910115:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 111 (drunken or reckless driving), 92 (failure to obey other lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910307:  Applicant completed Level II treatment. [Extracted from CAAC evaluation dated 910417.]
910417:  CAAC evaluation: CAAC opinion that Applicant is psychologically dependent on alcohol and should be verified by medical officer. Recommend administrative separation and treatment at a VA facility.

 910422:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Failure to obey lawful general order.
          Charge II: violation of the UCMJ, Article 111:
         Specification: Driving while drunk
         Charge III: violation of UCMJ, Article 134:
         Specification: Possession of false I.D. card with intent to defraud.
         Finding: to Charge I, II, and III and the specifications thereunder, guilty.
          Sentence: Forfeiture of $422.00, confinement for 15 days.
         CA action 910430: Sentence approved and ordered executed.

910423:  Drug/EOTH dependency evaluation: Applicant found to psychologically dependent on ETOH.

910508:  Drug and Alcohol Abuse Report: Alcohol abuse, ashore off duty. Method of identification for this incident: Military police 910316. CAAC and physician found Applicant dependent and recommended separate via VA hospital. Commanding Officer recommend separate via VA hospital. Comments: “Potential: SA B_ (Applicant) has NO potential for further naval service.”

910531:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense as evidenced by violation of the UCMJ, Article 92 (failure to obey other lawful order) (2 specifications), Article 111 (drunken or reckless driving) (2 specifications), and Article 134 (false or unauthorized pass), and alcohol rehabilitation failure as evidenced by failure to complete an alcohol rehabilitation program. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions

910531:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.
910617:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of alcohol abuse rehabilitation failure.

910702:  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 19910712 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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). The Board presumed regularity in the conduct of governmental affairs (E).

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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by nonjudicial punishment for UCMJ Article 92, failure to obey order or regulation and Article 111, drunken driving. The Applicant was convicted at summary court-martial for violations of UCMJ Articles 92, failure to obey order or regulation, Article 111, drunken driving, and Article 134, false pass offenses. Under applicable regulations, a violation of UCMJ Article 92, 111, or 134 is considered a serious offense. 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 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 post-service 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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, failure to obey order or regulation, Article 111, drunken or reckless operation of a vehicle, aircraft or vessel, or Article 134, false or unauthorized pass offenses, 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 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 .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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