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NAVY | DRB | 2004_Navy | ND04-01123
Original file (ND04-01123.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND04-01123

Applicant’s Request
The application for discharge review was received on 20040629. 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 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 20041103. 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. “At the time of my enlistment I was 24 yrs. old with a undiagnosed Alcohol problem (very serious). I since have been sober for 10 yrs. with the help of my family and A.A. I regret deeply the disservice I did to my country and pray every day that god forgive me. I continue to strive one – day at time to keep my life in order. And make amends for my transgressions During my enlistment I was very immature and with time I have since learned the importance of being a United States citizen and what a great privilege it is. Thank you for the opportunity that I took for granted .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter of recommendation dated July 30, 2004
Certificate of attendance at TDDS Technical Institute
Letter of recommendation dated August 2, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880804 - 880905  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880906               Date of Discharge: 900223

 Length of Service (years, months, days):

         Active: 01 05 18
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rate: SHSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB* (2)    Behavior: NOB (2)                 OTA : NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 39

*Not observed

 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 :

881103:  NJP for violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $310.35. No indication of appeal in the record.
890509:  At 0001, to UA.

890512:  Surrendered onboard USS John F. Kennedy at 0200 this date.

 891027:  Medical evaluation. Impression: alcohol dependence. Recommended for Level III treatment.
Undated:         Retention Warning: Advised of deficiency (Awarded NJP for drunk and disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
900116:  NJP for violation of UCMJ, Article 86 (4 Specs): (1) UA from 891130 to 900104, (2) UA from 891125 to 891127, (3) UA from 0630-1330, 891120, (4) UA from 0730, 891119 to 0300, 891120; violation of UCMJ, Article 87: Missing movement on 891130; violation of UCMJ, Article 90: Disobeying a lawful command from an Ensign on 900109; violation of UCMJ, Article 91 (2 Specs): Disobeying a lawful command from a PO1 on 900109 on two occasions; and violation of UCMJ, Article 134: Incapacitated for duty on 891120.
         Award: Forfeiture of $200 per month for 2 months, 7 days correctional custody. No indication of appeal in the record.
900126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
900126:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
900127:  DAAR. Alcohol abuse, 4-7 times per week, ashore – off duty. Physician recommended Level III treatment. CO recommended separate from service via VA hospital.
900207:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900212:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 900222:  Applicant declined VA treatment for alcohol dependence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900223 under other than honorable conditions for misconduct due to commission of a serious offense (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. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for violation of UCMJ, Articles 86, 87, 90, 91 and 134. While he may feel that his immaturity and use of alcohol were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. Relief denied.

 The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

 The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 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. 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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