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NAVY | DRB | 2005_Navy | ND0500799
Original file (ND0500799.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AT3, USN
Docket No. ND05-00799

Applicant’s Request
The application for discharge review was received on 20050406. The Applicant requests that his 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.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051215. After a thorough review of all 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 characterization of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“GI Bill-See attached statement

I wish to respectfully request a review of my discharge with an upgrade to honorable for the purposes of G.I. Bill entitlement. It is my dream to become an electrical engineer. I want to start college in the fall of 2005 at North Dakota State University in Fargo, North Dakota. Without the assistance of the G.I. Bill, my success may not become a reality. I realize what a valuable entitlement the G.I. Bill is and was devastated to learn my general discharge bars me from entitlement. I am proud to have served my country for five years. I received many positive reviews and commendations during my active service. Unfortunately, there were two incidents involving alcohol during that time. I apologize for my actions. Please weigh the evidence of record. There was no illegal activity involved, only bad judgment on two occasions. I hope you can award the honorable discharge and allow me to further my education and secure a successful future.
[signed] J_ S. R_ (Applicant)

3-27-2005”

 Applicant’s Remarks: See attached


Documentation
In addition to the service record, the following additional documentation submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990809 - 19990921      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990922             Date of Discharge: 20041029

 Length of Service (years, months, days):

         Active: 05 01 08
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (17 month extension)

 Education Level: 12                                 AFQT: 96

 Highest Rate: AT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (7)     Behavior: 2.6 (7)                 OTA : 2 .90 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Air Medal, Navy Unit Commendation, Meritorious Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon, Global War on Terrorism Expeditionary Medal.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

990809:  Enlistment waiver granted for one non-minor misdemeanor (driving while intoxicated).

020617:  NJP for violations of UCMJ, Article 86 (unauthorized absence), Article 92 (failure to obey order or regulation), and Article 134 (drunkenness-incapacitation for performance of duties through overindulgence in intoxicating liquor).
         Award: Forfeiture of $692 per month for 1 month, reduction to E-3. No indication of appeal in the record.

020625:  Medical evaluation by Mental Health Department, Naval Hospital, Oak Harbor, Washington. Substance abuse or dependency screening following alcohol related fitness for duty
         Diagnosis: Alcohol Abuse
         Recommendation: Outpatient treatment, attend Pre/Continuing Care support group 1 x per week, and no alcohol use what so ever during period of care.

021011:  Completion of outpatient alcohol abuse treatment, Substance Abuse Rehabilitation Program Mental Health Department, Naval Hospital, Oak Harbor, Washington.

040915:  NJP for violations of UCMJ, Article 128 (assault) and Article 134 (drunk and disorderly).
         Award: forfeiture of ½ pay per month for one month, reduction in rate, 45 days restriction, and 45 days extra duty. No indication of appeal in record.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041029 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 To be legally sufficient, a finding of misconduct due to a pattern of misconduct requires only two nonjudicial punishments within a single enlistment. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. The Applicant was granted a pre-service waiver for driving while intoxicated and his service was marred by two nonjudicial punishments for violations of UCMJ Article 86 (unauthorized absence), Article 92 (failure to obey an order or regulation), Article 128 (assault), and Article 134 (drunk and disorderly, and drunkenness-incapacitation for duty). Furthermore, the Applicant received outpatient alcohol rehabilitation treatment prior to his second alcohol related incident. The Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Separations under these conditions generally result in a less than honorable characterization of service. Relief denied.

The Applicant contends that he is entitled to receive G.I. Bill benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities. This issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief not warranted.

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 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 submitted no post service documentation for the Board’s consideration.

In the absence of a discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 25 April 2005, 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 V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D. 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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