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NAVY | DRB | 2005_Navy | ND0500679
Original file (ND0500679.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-DPSA, USN
Docket No. ND05-00679

Applicant’s Request
The application for discharge review was received on 20050308. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and attached document/letter:

1. “My ability to serve was impaired by my youth and immaturity. Both of my authorized absences and civilian arrest were due to Domestic issues. My wife left while I was deployed during the Gulf war. Upon my return she refused to let me or my parents see my daughter. It became impossible for me to correct the situation from Norfolk, VA. My emotions and anger got the best of me causing irrational actions on my part. I firmly believe I would have acted differently if I were more mature, as I am now.”

2. “My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses. I have not had any other convictions by civil authorities since my enlistment. I have worked hard, paid my taxes, and have been a good citizen.”

3. “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I fulfilled the sea service requirement of my enlistment. I never missed ships movement or deployment. I received the Southwest Asia Service Medal with two bronze stars. It is a hollow honor to be a veteran without an honorable discharge to go with it.”

4. “I tried to serve and wanted to, but was unable to. My evaluations show that my rate knowledge and military bearing was good. My superiors thought highly of me, but thought that I just made bad decisions. Upon returning and facing my second Captains mast I asked to be allowed to stay in. I thought of appealing, but by then I felt that it was hopeless. I feel that under current conditions that maybe I would have been given another chance given the circumstances. Under my own personal conditions now I know that I would react more rationally and sanely. I would have not been in trouble that I was in.”

5. “I received awards and decorations. Beyond the awards that I am submitting to you the Application for review. I also advanced rather quickly despite my problems. I had just made E-4 when I was reduced back to E-2 prior to my discharge. Unfortunately this is not in my record, because I had not been frocked yet. Despite my first njp on was on my way to E-4 not even three years into my enlistment.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Enlisted Performance Record
Letter of Appreciation, dtd August 6, 1992
Letter of Commendation from Commander, Battle Force Sixth Fleet
Letter of Recommendation, dtd February 5, 2005
Character Reference Letter from B_ A. P_ (Wife) dtd February 6, 2005
Certified Abstract of Marriage
Three Certificates of Birth
Letter from Applicant, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900530 – 19900904               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900905             Date of Discharge: 19930917

 Length of Service (years, months, days):

         Active: 03 00 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    37 days
         Confinement:                       None

 Age at Entry: 20

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 69

 Highest Rate: DPSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (2)     Behavior: 3.5 (2)                 OTA: 3.7

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Second Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal with 2 Bronze Stars, Kuwait Liberation Medal, Flag Letter of Commendation.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900907:  Retention Warning: Advised of deficiency (Failure to disclose pre-service civil involvement/drug abuse. 9005 Parking violation, expired tags/Cincinnati, OH. Paid $57.00 fine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910915:  Applicant to unauthorized absence at 1830 on 910915.

911017:  Applicant surrendered onboard at 1422, 911017 (31 days/surrendered).
911101:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 910915 to 911017.
 Award: Correctional Custody for 30 days, forfeiture of ½ pay per month for 1month. Forfeiture suspended for a period of six months. No indication of appeal in the record.
911108:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86: Unauthorized absence from unit from 1830, 910915 to 1422, 911017), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
921213:  ETOH intoxication evaluation: BAC .12 in MAA shack by breathalyzer. Drank 3 beers and 4 vodka & OJ. Impression: Acute ETOH intoxication, Plan: Divisional watch assigned in berthing.
930524:  Applicant to unauthorized absence at 0600 on 930524.

 930526:  Applicant apprehended and charged with civil authorities.

930528:  Applicant released from civil authorities at 2100, 930528.

930530:  Applicant reported on board USS PUGET SOUND (AD-38) at 1500, 930530 (6 days/surrendered).
930709:  Medical evaluation: Applicant seen as command chaplain referral as result of 2 nd domestic violence alcohol related incident. Applicant meets 9 out of 9 DSM III-R criteria for ETOH dependency. Recommend immediate medical officer evaluation for same and possible need for de-toxification and Level III. Member returns from CAAC, DSM criteria for ETOH dependence positive, found a lcohol dependent, amenable and eligible for treatment, recommended for Level III treatment. Scheduled for ARC 930712, advised to attend AA and abstain from alcohol.

930812:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0630, 930524 to 1500 930530.
 Award: Forfeiture of $456.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture of $456.00 pay per month for 2 months suspended for six months. No indication of appeal in the record.
930813:  Applicant declined inpatient alcohol rehabilitation treatment through the VA.

930823:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ in the current enlistment. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

930823:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. Applicant did not object to the separation.

930826:  Commanding Officer, USS PUGET SOUND, recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense as evidenced by all punishments under the UCMJ in the current enlistment. Commanding Officer’s comments: “DPSA P_ (Applicant) has no potential for future military service and has no ability to conform or follow rules and regulations of the Navy. He has been repeatedly counseled concerning his behavior and conduct, he has not responded to counseling as evidenced by the two nonjudicial punishments. Based on his conduct, coupled with the seriousness of the offenses that he committed, I recommend that he we separate DPSA P_ (Applicant) from the Naval service with a characterization of service under other than honorable conditions.”

930901:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930917 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. 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). The Board presumed regularity in the conduct of governmental affairs (E).

 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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by several periods of unauthorized absence totaling 37 days. This misconduct resulted in two nonjudicial punishment proceedings for violations of UCMJ Articles 86. Under applicable regulations, a violation of UCMJ Article 86, unauthorized absence in excess of 30 days, is considered a serious offense. 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 contends his discharge was inequitable because of his youth and immaturity at the time of service and assorted family problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted most servicemembers begin their service at a relatively young age and many encounter difficulties in their personal life. It must further be noted that despite their problems, relative youth, and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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 Naval service. The NDRB is authorized 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 could 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, and credible evidence of a substance free lifestyle. The Board received and considered all of the Applicant’s submissions, including his letters of recommendation, history of awards and records of birth and marriage. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval 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 any additional 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), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence greater than 30 days.

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, Para 211, Regularity of Government Affairs .

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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