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NAVY | DRB | 2005_Navy | ND0501546
Original file (ND0501546.rtf) Auto-classification: Denied


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

ex-AMEAN, USN
Docket No. ND05-01546

Applicant’s Request
The application for discharge review was received on 20050914. The Applicant requests the Discharge 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 on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721. After a thorough review of the 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 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:

“Respectfully request an upgrade to an honorable discharge due to lack of funds for education. I need an honorable discharge to apply for GI Bill. Thank you.”

 Documentation
Only the service and medical records were 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)     20010524 - 20010805      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010806             Date of Discharge: 20050315

 Length of Service (years, months, days):

         Active: 03 07 10
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 11                                 AFQT: 55

 Highest Rate: AME2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (5)                       Behavior: 3.0 (5)        OTA : 3 .23
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation Ribbon, National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon (2), Overseas Service Ribbon (2)


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

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

030620:  NJP for violation of UCMJ, Article 134: Fleeing the scene of an accident.
 Violation of UCMJ, Article 92: Failure to obey a lawful order.
          Award: Forfeiture of $751 per month for 1 month. No indication of appeal in the record.

030620:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 134-Fleeing the scene of an accident. Violation of UCMJ Article 92-Failure to obey a lawful order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040630:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $425 per month for 1 month, extra duty for 14 days, reduction to E-4 and restriction for 14 days. Reduction and restriction suspended for 6 months. No indication of appeal in the record.
040822:  Reduction in pay grade and restriction awarded at NJP on 040630 vacated due to continued misconduct.

040827:  NJP for violation of UCMJ, Article 111: Drunken operation of a vehicle.
 Violation of UCMJ, Article 92: Violation of order or regulation (2 specs).
         Award: Forfeiture of $370 per month for 1 month, restriction for 14 days, reduction to E-3. No indication of appeal in the record.
041216:  NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 91: Insubordinate conduct toward a Petty Officer.
         Award: Forfeiture of $640 per month for 2 months, restriction for 60 days, process for administrative separation. No indication of appeal in the record.
041227:  Substance Abuse Rehabilitation Program.
 Diagnosis: Alcohol dependence.
050131:  Applicant to Intensive Outpatient Treatment Program for alcohol dependence at the Substance Abuse Rehabilitation Program, U.S. Naval Hospital, Yokosuka, Japan.

050201:  Discharge Note: Applicant left Intensive Outpatient Treatment Program as a treatment failure because of refusal/inability to participate in the Treatment Program. Assessment: 1. Alcohol dependence. 2. Poor prognosis upon release.
050204:  Applicant found physically qualified for separation. Physician’s comments: Being separated for alcohol dependence.
050315:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: MILPERSMAN, Article 1910-140.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050315 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 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).

 The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board evoked the presumption of regularity. Specifically, the Board presumed that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.

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 Applicant’s service was marred by a retention warning and four nonjudicial punishment proceedings (NJP) for violations of Articles 91, 92, 111 and 134 of the UCMJ. The Applicant’s award at NJP on 20040630 was vacated on 20040822 due to the Applicant’s continued misconduct. The Applicant’s violations of Articles 91, 92 and 111 of the UCMJ are considered serious offenses. 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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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), 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. 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 91, insubordinate conduct, Article 92, failure to obey order/regulation or Article 111, drunken driving.

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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