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NAVY | DRB | 2004_Navy | ND04-00870
Original file (ND04-00870.rtf) Auto-classification: Denied


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

ex-ITSA, USN
Docket No. ND04-00870

Applicant’s Request
The application for discharge review was received on 20040507. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 The NDRB did note an administrative error on the original DD Form 214. Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded Or Authorized should read: “HUMANITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON” vice “HUMNITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge is improper because at the time of alcohol rehab failure charge, I was not issued a breathalyzer and did not receive a captains mass preceeding.
Since the incident I have had no criminal record, nor driving charges or citations and have had a job.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Chief of Police, City of Terre Haute, IN, dated June 7, 2004
Terre Haute Police Department Criminal History Check, dated June 7, 2004
Job/Character Reference from Shenango, dated June 1, 2004
Applicant’s Resumé, undated (2 pages)
Applicant Letter, undated and unsigned
Letter from Applicant pertaining to bicycle repairs for neighborhood children, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980528 - 980608  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980609               Date of Discharge: 001205

 Length of Service (years, months, days):

         Active: 02 05 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.83

 Military Decorations: None

 Unit/Campaign/Service Awards: HSM, SSDR, N&MCOSR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

000229:  NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey a lawful general order, Article 2201.6(6) (c), U.S. Navy Uniform Regulations by wrongfully having a tongue stud in his tongue.
         Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
000310:  Retention Warning: Advised of deficiency (Failure to obey a lawful general order, to wit: body piercing, wearing a tongue ring at the Terror Club and on board USS BLUE RIDGE (LCC-19) on 000222 and 000224), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000601:  NJP for violation of UCMJ, Article 108 (2 specs): Destruction of government property, violation of UCMJ, Article 134: Drunk and disorderly conduct.
Award: Forfeiture of $568 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000712:  Applicant enrolled in Level II intensive outpatient treatment.

 000727:  Applicant completed Level II intensive outpatient treatment for alcohol dependence. Strongly recommend Applicant complete second phase of treatment in the ASAM Level I outpatient treatment program.
000913:  NJP for violation of UCMJ, Article 108: Destruction of military property, violation of UCMJ, Article 134: Drunk and disorderly.
Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
001120:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a commission of a serious offense, alcohol abuse rehabilitation failure, and misconduct due to a pattern of misconduct.
001120:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
001122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.

001129:  Commander, Navy Region Northwest 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 20001205 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: The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for violation of the UCMJ, Articles 92, 108, and 134. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. 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, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Therefore, no relief will be granted.
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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. 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.

C. 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.

D. 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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