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NAVY | DRB | 2005_Navy | ND0500928
Original file (ND0500928.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAN, USN
Docket No. ND05-00928

Applicant’s Request
The application for discharge review was received on 20050511. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20050831. 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 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:

“Respectfully request this upgrade, so I can re enter the United States Military. I am apologetic for my action. And believe my performance was above what was expected from my chain of command. I will not lie and say I was right for refusing treatment, because I was not. I will say that other action could have been taken to rectify the situation. I do feel I was bullied out by my LCPO and that there head turned the other way with certain sailors on the ship. My military performance evaluations from July 1997 until April 1999 were above average, and higher than 89% of the airmen in my Division.”
Applicant’s Remarks: “I plead with this board today, to change my discharge, and grant me my request to return to active duty status in the United States military, I am a 4th generation sailor and only want to correct this error on judgment, for my self and my family, I do apologize for what violation I broke, and live with the fact that I did not finish the commitment that I swore too.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970222 – 19970727               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970728             Date of Discharge: 19991228

 Length of Service (years, months, days):

         Active: 02 05 01
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 45

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)     Behavior: 1.0 (1)        OTA: 2.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Armed Forces Service Medal, Sea Service Deployment Ribbons, Navy E Ribbon, Armed Forces Expeditionary Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

990401:  NJP for violation of UCMJ, Article 86: Go from duty section with the intent to abandon the same.
         Award: 30 days restriction and extra duty (15 days suspended for 6 months). No indication of appeal in the record.

990406:  Medical evaluation by Naval Medical Center, Portsmouth, Virginia.
          Diagnosis:
         Adjustment disorder depressed mood with occupational problems and alcohol abuse. [Extracted from CO’s 991214 message]

991102:  Applicant terminated treatment, having entered on 991101, due to the Applicant not feeling he needed treatment. [Extracted from CO’s message of 991214]
        
991206:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense and alcohol abuse rehabilitation failure.
991206:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the Administrative Board or to Separation Authority in lieu of a board and obtain copies of the documents used to support the basis for the separation.
991214:  Commanding Officer, USS DWIGHT D EISENHOWER, recommended discharge with a under other than honorable conditions by reason of misconduct commission of a serious offense and alcohol abuse rehabilitation failure. Commanding Officer’s comments: “AOAN B_’s (Applicant) misconduct has no potential for future service and recommend he be administratively separated with an other than honorable discharge by reason of misconduct commission of a serious offense and alcohol abuse rehabilitation failure.”

991217:  Commander, Cruiser-Destroyer Group 8, directed the Applicant's discharge with a under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991228 by reason of misconduct due to commission of a serious offense with a service characterization of under other than honorable conditions (A and 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).

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. The Applicant’s service was marred by nonjudicial punishment proceedings for the commission of a serious offense, a violation of Article 86 for going away from his duty section with the intent to abandon. 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 performance was above average and that some “other action” could have been taken aside from his discharge for his refusal of treatment. Mandatory processing for separation is required for alcohol treatment failures. Applicable regulations require that members be processed for separation for all reasons for which the minimum criteria are met. Appropriately, the Applicant’s Commanding Officer recommended the Applicant for separation due to alcohol rehabilitation failure and for misconduct due to the commission of a serious offense. Commander, Cruiser-Destroyer Group 8 directed the Applicant’s discharge by reason of misconduct due to the commission of a serious offense. In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge. Relief is not warranted.

 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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief denied.

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. 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, absence from guard or watch with intent to abandon.

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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