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NAVY | DRB | 2005_Navy | ND0501169
Original file (ND0501169.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND05-01169

Applicant’s Request
The application for discharge review was received on 20050706. 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 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 shall not change. The discharge shall remain Under Other Than 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 application:

“I want a upgrade so I can better my life and able to get more jobs. This has limited my options and work is hard to find anymore. I feel that I have paid my punishment long enough and feel that I am in same category as a felon by having career, restrictions this strict. I was caught drinking & driving in navy and admit wrong doing but don’t deserve life punishment.”
Documentation
Only the service and medical records 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)     19950222 – 19950816               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19950817             Date of Discharge: 19970228

 Length of Service (years, months, days):

         Active: 01 06 11
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 74

 Highest Rate: GSMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal
* Not Available


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

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

960222:  NJP for violation of UCMJ, Charge 1, Article 86 (2 Specs): Unauthorized absence.
         Award: Forfeiture of $120.00 pay per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

960222:  Retention Warning: Advised of deficiency (Poor military performance, to wit: Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 960419:  NJP for violation of UCMJ, Article 92 (2 specs): Wrongfully possessing an altered military ID card, and underage drinking.
         Award: Forfeiture of $437.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

970207:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order issued by CO TPU NAVSTA San Diego, CA prohibiting personnel under 21 years of age from consuming alcoholic beverages.
         Violation of UCMJ, Article 111: On 25 Jan 1997 did operate a motor vehicle while under the influence of alcohol.
         Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to GSMFR. No indication of appeal in the record.
970212:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of serious offense as evidenced by all incidents of misconduct during Applicant’s current enlistment for which a punitive discharge could have been awarded.
970213:  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.

970213:  Applicant was offered Level III treatment prior to separation from the naval service due to alcohol dependency. Applicant declined the treatment.
970218:  Commanding Officer, Transient Personnel Unit, San Diego recommended to Commander, Naval Base, San Diego, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of serious offense. Commanding Officer’s comments: “GSMFR M_ (Applicant)’s multiple violations of UCMJ preclude is further retention in the Naval Service. I strongly recommend that GSMFR M_ (Applicant) be separated with an Other Than Honorable Discharge by reason of misconduct due to pattern of misconduct and commission of serious offense.”

970221:  Commander, Naval Base San Diego, authorize d Commanding Officer, Transient personnel Unit, Naval Station, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19970228 by reason of misconduct due to a pattern of misconduct (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 applicant contends that his punishment for drinking and driving is too severe and limits his employment opportunities. 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 significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The NDRB found that the Applicant’s record contained 1 retention warning for p oor military performance (unauthorized absence). Additionally, the Applicant’s service was marred by 3 nonjudicial punishment proceedings for the following violations of the UCMJ:

•         Article 86 (2 Specs): Unauthorized absence.
•         Article 92 (2 specs): Wrongfully possessing an altered military ID card and underage drinking.
•         Article 92: Failure to obey a lawful order issued by CO TPU NAVSTA San Diego, CA prohibiting personnel under 21 years of age from consuming alcoholic beverages.
•         Article 111: On 25 Jan 1997 did operate a motor vehicle while under the influence of alcohol.
C ertain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Articles 86, 92 and 111 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits 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 sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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.

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 additional evidence related to this discharge. 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 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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, Articles 86, 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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