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NAVY | DRB | 2004_Navy | ND04-01149
Original file (ND04-01149.rtf) Auto-classification: Denied


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

ex-BUCR, USN
Docket No. ND04-01149

Applicant’s Request
The application for discharge review was received on 20040716. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “To Whom It May Concern:

I C_ J_ A_ (Applicant), respectfully request my current discharge of “Other Than Honorable “be upgraded to an “Honorable.” The grounds of my discharge consist of an “A Pattern of Misconduct “, unfortunately for me as well as for the Navy. The incidents were due to an abuse of alcohol, which led to poor judgment and decisions.

While on active duty, I was reprimanded for one DUI, and two occasions of multiple days UA. Also, I was cited for one drunk in public/resisting arrest which was dropped as a result of hiring an attorney. Prior to joining the Navy, I have been convicted of DUI and two contributing to the delinquency of minor citations.

The Navy did, however, send me to a twenty-eight day rehabilitation program, which I successfully completed. Although subsequently failed as I returned to abuse. After discharge from the navy, loss of my fiancé, trouble finding employment, financial difficulties and so on. I finally decided to change for good!

In closing, I have now been clean and sober for seven months, twenty-three days and going strong! I appreciate your time and hope I have made a valid point for my request.

Sincerely,

C_ J_ A_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000614 - 001023  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001024               Date of Discharge: 030725

 Length of Service (years, months, days):

         Active: 02 09 02
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 55

 Highest Rate: BUCA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 1.00 (3)                OTA: 2.18

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR

 Days of Unauthorized Absence: 5

 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 :

020129:  NJP for violation of UCMJ, Article 111: Drunken operation of a vehicle on 020111.
         Award: Forfeiture of $550 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
020129:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP on 020129, for violation of the UCMJ, Article 111, Physically control a vehicle, to wit: a passenger car, while the blood concentration in breath was 0.17 grams of alcohol per 210 liters of breath or greater on 020111), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
021226:  NJP for violation of UCMJ, Article 86 (18 specs): Failed to go at the time prescribed to appointed place of duty from 0800, 021031 through 0800, 021122, to wit: fence project.
Award: Forfeiture of $550 per month for 2 months, correctional custody for 30 days, reduction to E-1. No indication of appeal in the record.
030106:  Applicant’s punishment of correctional custody awarded at nonjudicial punishment on 021226 was mitigated to restriction and extra duty due to inadequate facilities. Restriction and extra duty will end at 2030, 030208.

030528:  Applicant to unauthorized absence 0645, 030528.

030602:  Applicant from unauthorized absence 0630, 030602 (5 days/surrendered).

030619:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0645, 030528 to 0630, 030602, (2) Failure to go at time prescribed to appointed place of duty on 0900-1300, 030611, to wit: Charlie Company spaces.
Award: Forfeiture of $575 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
030714:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
030714:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030714:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

030723:  Commander, Naval Air Warfare Center Weapons Division 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 20030725 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: 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 on three separate occasions for violating the UCMJ, Articles 86 and 111 thus substantiating the misconduct. 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 characterization of 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.

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. E vidence of continuing educational pursuits, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

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 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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