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NAVY | DRB | 2004_Navy | ND04-01250
Original file (ND04-01250.rtf) Auto-classification: Denied


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

ex-AO3, USNR
Docket No. ND04-01250

Applicant’s Request
The application for discharge review was received on 20040806. 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 designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214. After a thorough review of the available 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “I [Applicant] would like that you take the following information in consideration in your decision.
I understand that I was not the perfect sailor, but I was going to get out at the end of my enlistment Dec 08, 1998. I don’t feel that I was treated fair by my command. I explained that I had family problems when the incident occurred, but they didn’t work with me at all. I have truly learned from that and its changed my life for the better. I’m just asking that I please be giving another change by upgrading my general to honorable discharge.
Thank you”

The American Legion submitted no issues for consideration.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Education Plan from Palomar College dtd 040507
Initial Training Certificate dtd 040722

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940527               Date of Discharge: 981115

 Length of Service (years, months, days):

         Active: 04 05 19
         Inactive: 00 03 11

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 2.00 (2)                OTA: 2.57

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, N’E’R, NDSM, AFEM, SSDR (2)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

940907:  Commenced 36 mos. active duty.

961103:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ Article 95: Resisting arrest on 960922, violation of UCMJ Article 134: Drunk and disorderly on 960922.
         Award: Forfeiture of $250 per month for 1 month(s), restriction and extra duty for 30 days, reduction to E-3, RIR susp for 6 mos. No indication of appeal in the record.

970324:  Extended active duty obligation 15 months.
971006:  Retention Warning: Advised of deficiency (alcohol abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980730:  Applicant notified of intended recommendation by reason of misconduct due to the commission of a serious offense, and by reason of misconduct due alcohol rehabilitation failure.
980804:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980920:  Applicant submits conditional waiver of Administrative Board in lieu of a general (under honorable conditions) discharge.
981028:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to alcohol rehabilitation failure. Commanding Officer’s comments: [SNM had alcohol incidents in Apr 1996, Sep 1996 and Aug 1997. He was issued a page 13 regarding these incidents in Nov 1996 and Oct 1997. SNM successfully completed Level II alcohol treatment in Oct 1997. During the one year after care period, in Jul 1998, SNM had an additional alcohol incident.] [Partially extracted from COMNAVAIRLANT msg of 981104].

981104:  COMNAVAIRLANT directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to the commission of a serious offense.

Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981115 with a general (under honorable conditions) characterization by reason of misconduct due to commission of a serious offense (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1. 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 violations of Articles 92, 95 and 134 of the UCMJ. Violations of Article 92 are considered serious offenses. The Applicant successfully completed Level II treatment but had an alcohol incident during the one year after care period. 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.

The Applicant contends that his command failed to “work with” him and that he had "family problems" when the “incident” occurred. While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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. 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 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 92, disobey an order or regulation, if adjudged at a Special or General Court Martial
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 .

 E. 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.



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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