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NAVY | DRB | 2006_Navy | ND0600005
Original file (ND0600005.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND06-00005

Applicant’s Request
The application for discharge review was received on 20050928. 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 20060628. 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:

“To receive MGIB/MGIB, money was paid during term.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USANG  XXXXXX – XXXXXX*
 USNR (DEP)      20020815 – 20020821               COG
          Active: None

* USN Enlistment contract refers to “DEP Attrite National Guard”, dates unknown.

 Period of Service Under Review :
Date of Enlistment: 20020822             Date of Discharge: 20031031

 Length of Service (years, months, days):

         Active: 01 02 09
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 33

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)              Behavior: 1.0 (1)                 OTA: 1.0
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/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010623:  Applicant informed of temporary disqualification for military service as a result of medical examination at the Military Entrance Processing Station. A urine test showed a disqualifying amount of marijuana. A second test was conducted and obtained the same results.

020815:  Pre-service waivers for larceny and drugs granted.

030110:  USS ESSEX (LHD 2) Medical Department. Applicant referred by MAA for ETOH Evaluation. BAC .25, determined to be under ETOH intoxication.

030219:  U.S. Naval Hospital Yokosuka, Branch Medical Clinic, Sasebo, Japan. Applicant undergoes examination. 19 y/o, male, SR/E-1, approx. 7 months time in service, referred for substance abuse assessment as an incident referral for drunk and disorderly conduct and underage drinking. BAC: .250.
         Observation: The following were noted during the assessment. Patient (Applicant) reported early in clean uniform of the day. Pt appeared relaxed, compliant, disclosures were considered somewhat reliable to minimize. Rapport was easily established and maintained. No suicidal/homicidal ideation noted during the assessment. Pt reported a family history of alcohol dependence (biological father). Pt’s history of alcohol consumption covers an approx 4 year time frame of moderate to present heavy alcohol use. Current consumption was reported to be 3-5 drinks approx 5 times a week, although pt stated that approx 11 time a week he will drink until intoxication which takes approx 12 drinks in 4 hours. Area of concern: Tolerance. Pt stated that his tolerance has increases approx 100 percent in last 18 months.
         Assessment: Member does not appear to meet DSM IV criteria for alcohol Dependence/Abuse.
         Plan: ASAM Level .5 early intervention (Alcohol impact)
         Weekly check in with Command DAPA until Alcohol Impact.

030523:  USS ESSEX (LHD 2) Medical Department. Applicant referred by MAA for ETOH Evaluation. Determined not to be under ETOH Intoxication.

030801:  NJP for violation of UCMJ Articles 92 (Failure to obey a lawful order) and 134 ( Drunk and Disorderly). [Extracted from Retention Warning issued on 030901].

030802:  USS ESSEX (LHD 2) Medical Department. Applicant undergoes medical exam and found to be fit for correctional custody.

030901:  Retention Warning: Advised of deficiency (Your NJP on 01 Aug 03 for VUCMJ Articles: Art. 92 (Failure to obey a lawful order) and Art. 134 (Drunk and Disorderly).) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030905:  USS ESSEX (LHD 2) Medical Department. Applicant referred by MAA for Competence for Duty Examination. Reason for referral: underage drinking. BAC at 1616. .062%.

031008:  Commanding Officer, USS ESSEX (LHD 2) letter to Applicant, subject is ADVERSE PERFORMANCE EVALUATION REPORT for the period of 03 Jul 16 to 03 Sep 24.

UNDATED:         NJP awarded by the commanding Officer for violation of UCMJ Articles 86, 91, 92. [Extracted from Evaluation Report & Counseling Record during the Period of 03JUL16 to 03OCT08.]

031031:  DD Form 214: Applicant discharged this date by reason of pattern of misconduct with a character of service of under other than honorable conditions.

 Service Record is missing the Administrative Discharge package and
is also missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031031 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 Board presumed regularity in the conduct of governmental affairs (E).

 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 nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 134 of the UCMJ. Violations of UCMJ Article 92 are considered serious offenses, which is defined as any offense for which a punitive discharge is an authorized sentence under the UCMJ. 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 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. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 92 (failure to obey a lawful order) and Article 134 (Drunk and Disorderly).

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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