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NAVY | DRB | 2005_Navy | ND0501142
Original file (ND0501142.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND05-01142

Applicant’s Request
The Applicant’s DD-293 was received on 20050622 wherein he requested a documentary review to change the characterization of his service to general (under honorable conditions). The Applicant did not designate a representative on the application. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board’s (NDRB) authority for review is limited to 15-years from the time of discharge. Given this time constraint the Applicant is only eligible for one review and was, encouraged to attend a personal appearance hearing in Washington D.C. He was also advised that representation is recommended and available at no cost through veteran’s organizations. Subsequently, the Applicant elected a personal appearance hearing, however, no representative was elected. T he Applicant failed appear or contact the NDRB on the day of the scheduled hearing, therefore the Applicant’s case was converted to a documentary review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060419. 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 the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues:

“My discharge was inequitable because it was based on a D.U.I. I had an alcohol problem that was not treated. I have completed a Drug & Alcohol program and I am in recovery. I am starting a whole new life over Alcohol free. I will be getting a very important job and need the upgrade.”
Remarks:

“Please consider the fact that I was discharged with no efforts to help me with my alcoholism. I volunteered my own treatment and am starting over with a whole new life. God Bless & Thank you!”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890117 – 19890222               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890223             Date of Discharge: 19901018

 Length of Service (years, months, days):

         Active: 01 07 26
         Inactive: None

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

 Age at Entry: 19
Years Contracted: 4 (2 month extension)

 Education Level: 13                                 AFQT: 84

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)              Behavior: 3.1 (3)                 OTA: 3 .07 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890109:  Applicant briefed on the U. S. Navy's drug and alcohol abuse policy

890305:  Applicant briefed on the U. S. Navy's drug and alcohol abuse policy.

900426:  Applicant unauthorized absent from 0630 until 0745 on 900426.

900430:  Applicant unauthorized absent until 1015 on 900430.

900430:  Retention Warning: Advised of deficiency (unauthorized absence, on 9004026), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900430:  Retention Warning: Advised of deficiency (unauthorized absence, on 900430), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900703:  Unauthorized absence from 0500 until 0606 on 900703.

900704:  Unauthorized absence from 0530 until 0830 on 900704.

900705:  Commanding Officer, Patrol Squadron Forty-Eight notified AOAR T_ (Applicant) of his temporary decertification from the personnel reliability program. This action was based upon lack of motivation, poor attitude, and disregard for navy regulations.

900711:  Retention Warning: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900711:  NJP for violations of the UCMJ, Article 86 (unauthorized absence, 2 specifications).
 Specification 1: Absent from place of duty from 0500, 900703 until 0606, 900703.
Specification 2: Absent from place of duty from 0530, 900704 until 0830, 900704.
Award: Extra duty for 14 days, reduction to E-2. No indication of appeal in the record.
900719:  Counseling and Assistance Center (CAAC) screening determined Alcohol abuse. Recommended Level II outpatient treatment and be placed on Antabuse.
900808:  USN Hospital NAS Moffett Field diagnosis: Adjustment disorder, personality disorder and alcohol abuse.

900814:  NJP for violations of UCMJ, Article 92 (fail to obey order, move out of barracks on 900404) and Article 134 (drunkenness-incapacity for duty through previous overindulgence in intoxicating liquor on 900706).
         Award: Dismissed. Recommend ADSEP. No indication of appeal in the record.

900815:  Commanding Officer, Patrol Squadron Forty-Eight notified AOAR T_ (Applicant) of his recommendation for the Applicant’s permanent decertification from the personnel reliability program. This action was based on continued substandard military and professional performance, disregard for navy regulations, and lack of responsibility.

900817:  The Applicant acknowledged his consideration for permanent decertification from personnel reliability program and chose not to make a statement.

900819:  Applicant arrested by NAS Moffett Field Security for speeding and driving under the influence of alcohol, breathalyzer 0.14.

900822:  NJP for a violation of the UCMJ, Article 111 (drunken driving) on 900819 aboard NAS Moffett Field.
         Award: Reduction in rate to E-1, 45 days extra duty, and forfeiture of $362.00 per month for 2 months.

900823:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
900823:  Applicant advised of rights, elected not to consult with counsel, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900827:  Commanding Officer, Patrol Squadron Forty-Eight notified AOAR T_ (Applicant) that records had been reviewed and action taken to permanently decertify the Applicant from the personnel reliability program.

900914:  Medical Officer evaluation found Applicant not alcohol dependent and not amenable to treatment. The Applicant was recommended for administrative separation without VA treatment, as he is ineligible.

900917:  Commanding Officer, Patrol Squadron FORTY-EIGHT recommended to CNMPC the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “Airman Recruit T_’s (Applicant) demonstrated behavior and standards of conduct is unacceptable. He has repeatedly demonstrated a total disregard for Navy Regulations, the UCMJ, and to authority, in general. He has not responded to numerous hours of counseling through his chain of command, Family Service Center nor the Navy Chaplain. He routinely gives assurance to those in higher authority that he has “learned his lesson” and will “clean up his act”, only to commit another violation of the UCMJ a short time thereafter. His continuous defiance of authority and violations of the UCMJ prove to me that he cannot be rehabilitated and will continue to be a very disruptive influence in this command. I strongly recommend separation from the naval service and the characterization of his separation be Other Than Honorable.”

901009:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct serious offense.

901016:  Commanding Officer, Patrol Squadron Forty-Eight notified Chief of Naval Operations of the Applicant’s permanent decertification from the Personnel Reliability Program.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19901018 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).

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 under honorable conditions. 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 UCMJ, Article 86 (unauthorized absence, 2 specifications), Article 92 (failure to obey an order), Article 111 (drunken driving), and Article 134 (drunkenness – incapacity for duty). R eference (A) defines e ach violation of the UCMJ, Articles 92 and 111 as the commission of a serious offense, the misconduct for which the Applicant was discharged. Separations under these conditions generally result in a characterization of service as under other than honorable conditions. Relief denied.

The Applicant contends that his discharge is inequitable because it was based on a DUI and he had an alcohol problem. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The Applicant was diagnosed by competent medical authority as not alcohol dependent and not amenable to treatment. The NDRB does not consider the Applicant’s alleged medical condition to be sufficient to exonerate his misconduct. 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. Relief denied.

The Applicant requested that his discharge be upgraded in order to qualify for a very important job. There is no requirement or law that grants recharacterization on the issue of obtaining more favorable employment and 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, housing, employment 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 is 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 stated that he had completed a drug and alcohol program and is in recovery, however he failed to provide documentation to support his post service accomplishments. T he Board concluded that the Applicant’s contention of living alcohol free to be insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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 each violation of the UCMJ, Articles 92 and 111.

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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