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NAVY | DRB | 2004_Navy | ND04-01198
Original file (ND04-01198.rtf) Auto-classification: Denied


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

ex-EMFR, USN
Docket No. ND04-01198

Applicant’s Request
The application for discharge review was received on 20040719. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary review was conducted in Washington, D.C. on 20050201. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I feel that I should be granted an upgrade of my discharge. I have successfully completed an alcohol rehab program offer by the county and attend AA meetings on a regular basis. My alcohol problem while on active duty was triggered by the news of my best friend, back home, loosing his life to auto accident. I am currently employed by Winklers Tree Service for 1 year. I have maintained a steady employment record since my discharge as well. In addition, I have performed volunteer work for the severely disabled as well. I have worked with them on an individual basis. I truly enjoyed helping these challenged individuals. More importantly, I strongly believe they enjoyed my assistance and interaction with them much more. It truely feel great to be helping others and to be sober again. I feel that HAVE tried hard to turn my life around and have successfully done so! It is for these reasons that I request your consideration of an upgrade of discharge.

Thank you.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

 2. “The Veterans of Foreign Wars US appreciates the opportunity to have conducted a review of the aforementioned Applicants file on January 7, 2005. IAW SECNAV Instructions 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of discharge, we ask for all submitted evidence and statements of the Applicant be carefully considered in addition to the DD 293 application on file. This Applicant is an active member of Alcoholics Anonymous and is gainfully employed. He currently assists children who are mentally challenged with severe mental disorders. He had setbacks while on active duty from failing to qualify as a NAVY SEAL and his friend was killed in an automobile accident. He was guilty of underage drinking while a member of the Armed Forces.

The Veterans of Foreign Wars US express purpose in providing this review, and any other submittals or opinions of record, is to aid the Applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all evidence, we ask the Board to resolve any doubt in favor of the Applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.”






 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Character reference from Applicant’s father, dated August 6, 2004
Character reference, dated September 22, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890428 - 890906  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890907               Date of Discharge: 920115

 Length of Service (years, months, days):

         Active: 02 04 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: EMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 2.60 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 1 Star, SSDR

 Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890913:  Applicant briefed on Navy's policy of drug and alcohol abuse.
901116:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Violate Illinois revised statute, consuming alcohol beverages under 21 years of age, (2) Disorderly conduct.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to E-1. Restriction, extra duty and reduction suspended for 180 days. No indication of appeal in the record.
901116:  Retention Warning from Service School Command, Great Lakes, IL: Advised of deficiency (Poor military performance, by wrongfully consuming an alcoholic beverage under the age of 21 years, in violation of Illinois revised statutes, and was disorderly, which conduct was prejudice to good order and discipline in the Armed Forces, by unlawfully striking a senior petty officer in the mouth with your fist), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 910227:  Retention Warning from USS WASP (LHD 1): Advised of deficiency (ETOH abuse specifically your incident of abuse on 900920 involving under age drinking and drinking on a duty status), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910311:  Applicant enrolled in CAAC outpatient program.

910321:  Applicant terminated from CAAC outpatient program due to his behavior. It is recommended Applicant be afforded Level III.

 910615:  Applicant to unauthorized absence 0530, 910615.

910617:  Applicant from unauthorized absence 0620, 910617 (2 days/surrendered).
910810:  NJP for violation of UCMJ, Article 86: Fail to go at time prescribed to appointed place of duty on 910802, to wit: morning quarters for muster, instruction, and inspection, violation of UCMJ, Article 134: Wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of duties on 910802.
         Award: Forfeiture of $422 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
910810:  Retention Warning from USS WASP (LHD 1): Advised of deficiency (Failure to go to appointed place of duty and incapacitated for the proper performance of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
911018:  NJP for violation of UCMJ, Article 89: Disrespect to 1 st Lt on 911017, by saying to him “I’ll kick your ass”, violation of UCMJ, Article 95: Resist being apprehended by shore patrol on 911017, violation of UCMJ, Article 128: Assault an elderly woman by grabbing her posterior on 911017, violation of UCMJ, Article 134: Drunk and disorderly on 911017.
         Award: Forfeiture of $376 per month for 2 months, restriction for 60 days, reduction to E-1. Restriction suspended for 6 months. No indication of appeal in the record.
911101:  Drug/Alcohol Dependency Screening: Applicant determined to be drug/alcohol dependent.
911212:  USS WASP (LHD 1) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure due to your failure to successfully complete a Level II Alcohol Treatment and Rehabilitation Program, as evidenced by your disenrollment from said program for being disruptive in class, by reason of misconduct due to commission of a serious offense as evidenced by your NJP for assault, disrespect towards a commissioned officer, and resisting apprehension, as contained in your service record, any of which, if tried by SPCM, could have resulted in a BCD, and by reason of misconduct due to a pattern of misconduct as evidenced by 3 NJP’s during your current enlistment, as contained in your service record.
911212:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.
911213:  Applicant’s statement.
911219:  Applicant accepted VA treatment.
920106:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and alcohol rehabilitation failure.

9201XX:  Civilian charge for driving under the influence which is pending before the court in Hillside, IL. Applicant scheduled to appear in court in January 1992.

920115:  BUPERS 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 19920115 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: 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. Relief denied.

Issue 2: Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

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 three nonjudicial punishment (NJP) proceedings for violations of Articles 86 (Unauthorized absence), 89 (Disrespect to a naval officer), 95 (Resisting apprehension by shore patrol), 128 (Assault), and 134 (3 specifications – Drinking under the age of 21, Disorderly conduct and being Incapacitated for duty). Additionally the Applicant had several adverse counseling entries and was pending a civilian DUI charge. The Applicant was determined to be alcohol/drug dependent but was disenrolled from the CAAC outpatient treatment program due to his behavior. 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 upgrade to his characterization of service. 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 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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