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NAVY | DRB | 2005_Navy | ND0501082
Original file (ND0501082.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND05-01082

Applicant’s Request
The application for discharge review was received on 20050614. The Applicant requests that his 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 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 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:

“Because of my ONGOING of use of DRUG AND ALCOHOL PROBLEMS. I would Like TREATMENT FOR THEM. THE Discharge is IMPROPER BECAUSE of My ONGOING of use of DRUG AND ALCOHOL Problems. I would like TREATEMENT FOR THEM.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010302 – 20010318               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010319             Date of Discharge: 20030723

 Length of Service (years, months, days):

         Active: 01 08 28         (excluding lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 20021216 – 20030708 (204 Days)
         Confinement:              none

 Age at Entry: 34

 Years Contracted: 4

Education Level: 12                                 AFQT: 40

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.5 (2)              Behavior: 1.0 (2)                 OTA: 2 .00 (2)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.


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

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

 Chronological Listing of Significant Service Events :

010323:  Bench warrant issued for Applicant by Queens Co. Sup. Crt.

010907:  Applicant charged with violation of UCMJ Article 128 (assault) and Article 134 (3 specifications; drunk and disorderly, communicating a threat, and dishonorably fail to pay debt).

011011:  NJP for violations of UCMJ, Article 128 (assault), Article 134 (3 specifications; drunk and disorderly, communicating a threat, and dishonorably fail to pay debt).
         Award: Forfeiture of $607.35 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (reduction and forfeiture suspended for 6 months). No indication of appeal in the record.

011012:  Retention Warning: Advised of deficiencies i.e. violations of UCMJ Article 128 (Assault), Article 134 (threat communicating, disorderly conduct drunkenness, and dishonorably fail to pay debt), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020102:  Applicant to unauthorized absence at 0800 on 02 January 2002.

 020102:  Applicant from unauthorized absence at 1520, 02 January 2002.
020102:  Applicant charged with a violation of the UCMJ Article 134 (drunkenness – incapacitated for duty through over indulgence in intoxicating liquor).

020112:  Applicant charged with a violation of the UCMJ Article 128 (assault).

020113:  Applicant charged with a violation of the UCMJ Article 134 (drunkenness – incapacitated for duty through over indulgence in intoxicating liquor).

 020117:  NJP for violations of the UCMJ, Article 86 (unauthorized absence), from 0800 01 January 2002 until 1520 01 January 2002; Article 128 (assault) 2230 12 January 2002, assault K_ a bartender at Cino’s bar, by striking her with an open hand across the face; Article 134 ( drunkenness – incapacitated for duty through over indulgence in intoxicating liquor , 2 specifications) 1520 02 January 2002 (BAC .279) and 0805 13 January 2002, (BAC .134).
         Award: Restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

020117:  At CO’s NJP of 02 January 17, service member was given a lawful order to report to DAPA Counselor for alcohol counseling and treatment.
        
020117:  Reduction in pay grade awarded at NJP on 11 October 2001 vacated due to continued misconduct.

020221:  Applicant diagnosed as alcohol dependent, recommended intensive outpatient intervention. LT, MSC, USNR, Licensed Clinical Psychologist.

020510:  Applicant completed 24 days of treatment at the alcohol treatment facility, Rota Spain. Continuing care: Abstain from all alcohol use, 26 weeks of continuous care, 12 step meeting weekly, and meet weekly with DAPA for one year.

021122:  Applicant charged with violations of the UCMJ Article 117 (provoking speeches or gestures) and Article 134 (drunk and disorderly).

021202:  NJP for violations of the UCMJ, Article 117 (provoking speech or gestures) 22 November 2002, saying “you f___ing redneck” to BM2 H_ S_, III and Article 134 (drunk and disorderly) on 22 November 2002.
 Award: Forfeiture of ½ pay for 2 months (suspended for 6 months), restriction and extra duty for 45 days. No indication of appeal in the record.
021205:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of alcohol rehabilitation failure.

021205:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
021211:  Commanding Officer, USS La Salle (AGF-3), authorized applicant’s discharge with a general (under honorable conditions) by reason of alcohol rehabilitation failure.

021214:  Applicant transferred from forward deployed USS LeSalle (AGF-3) to Transient Personnel Unit (TPU) Norfolk.

030710:  Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. References administrative discharge package dated 26 June 2003.

030723:  Applicant discharged in absentia.

030730:  Commanding Officer, USS La Salle (AGF-3) forwarded the administrative discharge package to Commander, Navy Personnel Command.
051107:  Commanding Officer, Transient Personnel Unit, Norfolk indicates SA V_ (Applicant) was transferred to TPU Norfolk for separation due to alcohol rehabilitation failure. He never reported to TPU Norfolk because civil authorities in Norfolk, VA detained him, he was extradited to New York, NY pending civil charges. The Applicant was discharged in absentia on 23 July 2003 for misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia 20030723 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 all 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 Board presumed regularity in the conduct of governmental affairs (E).

 When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, 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. The Applicant’s record documents 3 nonjudicial punishments (NJP) for violations of the UCMJ Article 86 (unauthorized absence), Article 117 (provoking speeches or gestures), Article 128 (assault, 2 specifications) and Article 134 (communicating a threat, disorderly conduct, dishonorably fail to pay, incapacitated for duty due to overindulgence in intoxicating liquor, 6 specifications). Furthermore, the record documents an unadjudicated violation of the UCMJ Article 86 (unauthorized absence in excess of 30 days, 204 days) prior to his discharge in absentia. Reference (A) defines each violation of UCMJ Article 86 (unauthorized absence in excess of 30 days) and 128 (assault consummated by battery) as a serious offense, the misconduct for which the Applicant was discharged. There is credible evidence in the record that the Applicant committed a serious offense. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separations under these conditions generally result in a less than honorable characterization of service. Relief denied.

The Applicant states that he wants treatment for his alcohol and drug problem. 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. This issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, employment, housing or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit, relief denied.

The Applicant contends that his discharge was improper because of his ongoing use of alcohol and drugs. He bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention of impropriety. In this case, a qualified medical officer diagnosed the Applicant as alcohol dependant. He was subsequently treated at the alcohol treatment facility in Rota Spain. Following his treatment the Applicant was involved in an alcohol related incident, violating his aftercare treatment plan. His serious violations of the UCMJ resulted in his discharge for the commission of a serious offense. The NDRB does not consider the Applicant’s stated use of drugs and alcohol to exculpate his misconduct. The record clearly reflects his willful misconduct, demonstrating 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. The Board found no evidence of impropriety in the discharge process. 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 should be provided to the Board include evidence of a drug free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided no post service documentation for the Board’s consideration.

In the absence of a complete 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”. The record does document that proper convening authority directed the Applicant’s discharge and refers to the missing discharge package. 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 02 until Present, 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 violations of the UCMJ, Article 128 (assault).

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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