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NAVY | DRB | 2005_Navy | ND0500160
Original file (ND0500160.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00160

Applicant’s Request
The application for discharge review was received on 20041101. 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 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, 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. “During the time I was enlisted in the United States Navy there were many problems that surfaced. As an individual I felt as though my ability to uphold honor, courage and commitment was somewhat of a task while performing day-to-day activities and also succumbing and/or overcoming a developing alcohol problem, things got worse. On my 6 month deployments, although task were accomplished my focus became fuzzy and alcoholism approached at a fast pace. Different ports, same abusive behavior. With an addictive nature, even though I was Gung-Ho on making a career of my naval experience, it began to avalanche in a downward spiral. Along with a mental illness (non-conforming) and understanding rules and regulations upon discharge I feel as though my experience with proper help and guidance could have been extended. All I wanted was to become a part of our countries Armed Forces and make those who generally look up to “us” proud. My discharge stagnated that chance now being outside of the service and needing certain help, I feel as though an upgrade would be sufficient in giving me a helping hand to battle with things that are a challenge.

Thank you very much”

 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)     970624 - 970717  ELS
                  USNR (DEP)      971222 - 980107  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980108               Date of Discharge: 990730

 Length of Service (years, months, days):

         Active: 01 06 23
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM

 Days of Unauthorized Absence: None

*No marks found in record

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

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

 Chronological Listing of Significant Service Events :

980610:  Applicant advised due to his inability to follow written instructions regarding liberty procedures in a foreign port you are hereby designated a Liberty Risk. Liberty not authorized.

981116:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $463 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
981203:  NJP for violation of UCMJ, Article 134: Drunkenness, incapacitation of duties through prior wrongful indulgence in intoxicating liquor on 981116.
         Award: Forfeiture of $519 pay per month for 1 month. Forfeiture suspended for 6 months. No indication of appeal in the record.
981203:  Retention Warning: Advised of deficiency (Drunkenness, incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981211:  Vacate suspended forfeiture awarded at CO’s NJP dated 981203.

981211:  NJP for violation of UCMJ, Article 134: Drunkenness on 981204.
         Award: Bread and water for 3 days. No indication of appeal in the record.
981216:  Retention Warning: Advised of deficiency (Failure to obey lawful order or regulation and drunkenness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990111:  Retention Warning. [Date extracted from Commanding Officer’s letter dated 990712.]

990609:  NJP for violation of UCMJ, Article 91 (2 specs): (1) Treat with disrespect in language and gesture BM1 on 990424, to wit: by saying to him “I’ll get you in your rack tonight.”, (2) Treat with disrespect in language and gesture BMC on 990607, to wit: “You’re just a bunch a mother f______ crackers” and acting belligerent manner towards the Chief Petty Officer, violation of UCMJ, Article 86: Absent from appointed place of duty on 990430, violation of UCMJ, Article 92: Failure to obey a lawful order or regulation on 990607, to wit: class bravo liberty risk status, by wrongfully consuming alcohol, violation of UCMJ, Article 134: Drunk and disorderly on 990607.
         Award: Forfeiture of $537.90 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
990628:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to the commission of a serious offense.
990628:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
990712:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to the commission of a serious offense.

990716:  COMNAVSURFLANT, Norfolk, VA directed the Applicant's discharge under other than 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 19990730 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. An under other than honorable conditions 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. T he Applicant’s service was marred by four separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence, 91, disrespect toward a chief petty officer, 92, failure to obey order or regulation, and 134, drunkenness, incapacitation for duty and drunk and disorderly conduct. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that alcoholism and mental illness were the causes of his misconduct. Notwithstanding the veracity of his claims, such conditions will not normally excuse a servicemember from legal liability for his misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence. T he evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of his acts. As such, the Board presumed that the Applicant was responsible for his misconduct and concluded that he should be held accountable for his actions. 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. 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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