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NAVY | DRB | 2004_Navy | ND04-00915
Original file (ND04-00915.rtf) Auto-classification: Denied


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

ex-HM3, USN
Docket No. ND04-00915

Applicant’s Request
The application for discharge review was received on 20040512. The Applicant requests the characterization of service received at the time of discharge be changed to honorable the reason for the discharge be changed to either Separation, or Discharge, or Administrative. 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 20041112. 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 and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “On July 18,1997 I was discharged from the Navy with a Discharge Character of General Under Honorable Conditions and a Narrative Reason for Separation as Misconduct. I would like to have my:
(a) Discharge Character to be changed to Honorable.
(b) The Narrative Reason for Separation changed to: either, Separation, or Discharge, or Administrative.
(c) On Block 13 of DD Form 214 “Combat Ops Insignia” changed to “Combat Action”.
(1) I don’t think the Combat Ops Insignia exists and was placed in my record in error.
(2) I was involved in three Combat Action Campaigns, “Desert Shield”, “Desert Storm”, and “Desert Saber” in the first Iraqi war.
(d) Block 26 (Separation Code) of DD Form 214 to reflect or justify the requested upgrades of Blocks 24 and 25.
(e) In these times of crisis, I believe I can still serve my country and I want to, but Block 27 (Reentry Code) of DD Form 214 reflects RE-4 which doesn’t let me. If Block 27 could be changed to a Reentry Code that would let me join some deployable reserve unit I would be much grateful.”

2. “Item #6 DD Form 293, Aug 2003 (Issues: Why and Upgrade or Change is requested and Justification for the Request)

On December, 1996 I was sent to “Captain’s Mass” for an Article 15 Uniformed Code of Military Justice #111 “Driving under the Influence”. The results of my “Captain’s Mass” ended with my receiving a reduction in pay grade, 30 days extra duty to include Sundays and Holydays, a fine and eventually being involuntarily separated from the Navy on July of 1997.
My justification for the sentence I received is that I believe it was much too harsh for a one-time offence. My evaluations prior to the charge were excellent. The evaluation with my separation was good even though it reflected my “Captain’s Mass”. I was just promoted, but not yet paid for E-6, so the reduction in pay grade reflected two pay grades I was reduced. To be involuntarily separated from the Navy went to another extreme. There are not many companies that would fire an employee for a single DWI, unless, maybe, a school bus driver.
I lived in Bolling Air Force Base at the time I received the DWI. Prior to it I had some incidents on base, but they were due to an ill and failing marriage. The day of the incident I had a small party in my house, which there was drinking and barbecuing. The party ended around 6 pm, after which I had nothing else to drink containing alcohol. The incident was around 11 pm after I had an argument with my, at the time, wife, for which she kneed me in the groin. To avoid retaliating and to keep from getting further injury I decided to leave. I had just pulled out of my driveway when I saw Bolling Security, so I pulled back in my driveway to talk to the security officer. I must admit I was very angry at the time and in pain from being kneed in the groin. I was unfriendly to the security officer, and possibly rude, for which he concluded that I was drunk and arrested me. The charges also included that I had disabled the telephones in my house so my wife could not call for help. That, also, was not true. There was no proof of my being intoxicated other than a field sobriety test. To walk a line heel to toe, a task that I am incapable of doing no matter what condition I’m in. Before, during, and after the incident I had been going to sick call for pain to my left foot and great toe for which I’ve had two operations to, after my separation from the Navy (reports enclosed). And glassy eyes, which is something suggestive to the individual giving the test and to the individual being tested and also the test was done at night.
Though I know that the charges brought to me were untrue I am thankful that Bolling Air Force Base Security kept me from driving on. I was very angry, at the time, and I would have regretted being involved in some kind of “Road Rage” incident.”

3. “I thank you in advance for your consideration, patience, and time.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Three pages from Applicant’s service medical record
Podiatry-Clinic progress notes, dated January 5, 2004 (13 pages)
Two hundred and seventeen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USANG           770412 – Unknown         HON
                  USNR (DEP)      820415 - 820912  COG
         Active: USN                        820913 - 880202  HON
                  USN                       880203 - 931026  HON

 Period of Service Under Review :
Date of Enlistment: 931027               Date of Discharge: 970718

 Length of Service (years, months, days):

         Active: 03 07 22
         Inactive: None

 Age at Entry: 39                          Years Contracted: 2 (27 months extension)

 Education Level: 12                        AFQT: 68

 Highest Rate: HM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 4.00 (2)                OTA: 4.00        4.0 Evals
 Performance: 5.00 (1)    Behavior: 3.00 (1)                OTA: 4.14        5.0 Evals
Military Decorations: None

 Unit/Campaign/Service Awards: SASM (2), NUC, GCM (3), SSDR (3), NFMFR, NDSM, HSM, MUC, N&MCOSR (2), 9mm PM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960812:  Applicant diagnosed alcohol dependent [Extracted from Dept Head BMC, WNY ltr dtd 961003].

961002:  Family Advocacy Program Case Review Committee: Substantiated for abuse of the spouse by the service member.

961009:  Military protection order issued to Applicant.

961028:  Applicant extended for 27 months.

961104:  Branch Medical Clinic: Discharge diagnoses: AXIS I: Alcohol dependence, as manifested by a maladaptive pattern of drinking leading to tolerance, symptoms of withdrawal, exceeding intake limits, unsuccessful efforts to cut down, social and interpersonal activities frequently include alcohol use, use has seriously compromised marital and duty related activities, and alcohol use continues with the knowledge of its medical, administrative, and psychological adverse effects.

961205:  NJP for violation of UCMJ, Article 111: Operate a vehicle while drunk on 2300, 960921, to wit: a Chevy Blazer.
         Award: Forfeiture of $200 per month for 2 months, extra duty for 30 days, reduction to E-4. No indication of appeal in the record.
960723:  Counseling: Advised of deficiency (responsibility), notified of corrective actions and assistance available.

970220:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and alcohol rehabilitation failure, as evidenced by your nonjudicial punishment on 961205 for drunk driving.
970220:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970424:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and was an alcohol rehabilitation failure, that the misconduct warranted separation, and recommended a general (under honorable conditions) discharge.

970620:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and alcohol rehabilitation failure. CO’s comments: [On 05 December 1996, [Applicant] was found to have violated Article 111 of the UCMJ (Drunk Driving). [Applicant] has three times been provided the opportunity to attend the Navy’s Alcohol Rehabilitation Programs. Nonetheless, in addition to committing the drunk driving offense, [Applicant] has been involved in at least three other alcohols related incidents.]

970702:  BUPERS directed the Applicant's discharge general (under 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 19970718 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A & 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).

Issues 1-3. 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 General 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 a violation of Article 111 of the UCMJ and failure of alcohol rehabilitation. Further, an Administrative Board found that the Applicant committed misconduct, was a rehabilitation failure and that his misconduct merited separation. 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. Relief is not warranted.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for the violation of Article 111 of the UCMJ, a serious offense. The summary of service clearly documents that misconduct due to the commission of a serious offense was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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. 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 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, drunken driving, if adjudged at a Special or General Court Martial.

C. 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.

D. 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.

E. 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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