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NAVY | DRB | 2006_Navy | ND0600337
Original file (ND0600337.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. ND06-00337

Applicant’s Request
The application for discharge review was received on 20051219 . 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 designated American Legion as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061103 . 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 can not received any VA benefits because this discharge. I was only a month away from my ETS, when this accrued. I feel that I was no given the benefit of doubt when this happen. Up to this point I never was in any serious trouble with the Navy . Any consideration in this matter will be greatly appreciated .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19880909 - 19890117       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 19890118              Date of Discharge: 19930205

Length of Service (years, months, days):

          Active: 0 4 00 18 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 22 day s
         Confinement:              None

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 37

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 2 ( 4 )              Behavior: 3 . 3 ( 4 )                  OTA: 3 . 35

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal with 1 Star, Navy “E” Ribbon, Joint Meritorious Unit Award, Sea Service Deployment Ribbon with 1 Star.


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900204:  Medical entry: USS SAVANNAH ( AOR-4 ) , Medical Department, LT R. M. P_, MC, USN: Applicant referred for competence for duty exam due to reporting for duty with alcohol on breath, slurred speech and inappropriate behavior. Determined to be not competent to perform duties due to alcohol intoxication (BAC .096).
920106:  Medical entry: USS SAVANNAH (AOR-4), Medical Department, LT G. D. D_, MC, USNR: 23 year old black male with 2 events involving being thrown out of bars for drunk and disorderly conduct. Slept through work once on a separate occasion. Denies blackouts, denies drinking problems. When drinking with heavy drinkers, he tends to drink heavily. When not, he controls his drinking.
          Substance Dependence (DSM III R), Alcohol: Using more than intended - yes, unsuccessful efforts to control use – yes, use interferes with responsibilities or safety – yes, uses knowing it causes other problems – yes, duration at least one month – yes. Dependence criteria met – yes.
          Member is : psychologically dependent -- no . Ph y siologically dependent -- no . Alcohol abuse – yes .
          Treatment recommendations: on board rehabilitation program (Level 1).
92061 6 :  Applicant to unauthorized absence at 0700.
920707:  Applicant from unauthorized absence at 2200 (22 days/returned).
920722:  NJP for violation of UCMJ, Article 86: Absence from unit , in that W_, T_ G . (Applicant), SA, USN, did on or about 0700, 920616, without authority, absent himself from his unit at which he was required to be, to wit: USS SAVANNAH AOR-4, located at Norfolk Naval Base, VA., and did remain so absent until on or about 2200, 920707, a period of about 21 (sic) days and 15 hours .
 Award: Forfeiture of $440.00 pay per month for 2 months, restriction and extra duty for 40 days, reduction to E-2. No indication of appeal in the record.
920722:  Retention Warning: Advised of deficienc ies in performance and/or conduct (Violation UCMJ ART 86 Absence from unit) . N otified of corrective actions and assistance available, advised of conseq uences of further deficiencies, issued disciplinary and discharge warning s .
920725:  Drug and Alcohol Abuse Report. Date of incident, 920716. Primary substance, alcohol. Frequency of abuse, 1-3 times per week. DAPA evaluation : (Applicant) dependent, amenable and eligible for counseling/ education/rehabilitation , recommend Level 1 treatment . Medical Officer evaluation : (Applicant) dependent, amenable and eligible for counseling/education/rehabilitation , recommend Level 1 treatment . Commanding Officer’s action: Retain, Level 1 treatment including NADSAP, NJP.

920817:  NJP for violation of UCMJ, Article 80: Attempts , in that W_, T_ G . (Applicant), SA, USN, did, on board USS SAVANNAH (AOR-4) located at sea, on or about 0611, 920815, attempt to steal $165.00, by knowingly accessing his account in order to take advantage of a malfunctioning Automatic Teller Machine on nine occasions.
Award: Forfeiture of $165.00 pay per month for 1 month. No indication of appeal in the record.
920917:  NJP for violation of UCMJ, Article 86: Failing to go to place of duty . I n that W_, T_ G . (Applicant), SA, USN, did on board USS SAVANNAH (AOR-4), located at Naval Base Norfolk, VA., on or about 1200, 920903, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: DAPA meeting .
 Award: Forfeiture of $300.00 pay per month for 1 month, restriction for 15 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
921120:  NJP for violation of UCMJ, Article 86x 2: Absence from unit , i n that W_, T_ G . (Applicant), SA, USN, did, on or about 0700, 921112, without authority, absent himself from his unit to wit: USS SAVANNAH (AOR-4) located at NORSHIPCO, Norfolk, VA., and did remain so absent until on or about 0705, 921112, a period of about 5 minutes ; Absence from unit, in that W_, T_ G . (Applicant), SA, USN, did, on or about 0700, 921114, without authority, absent himself from his unit to wit: USS SAVANNAH (AOR-4) located at NORSHIPCO, Norfolk, VA., and did remain so absent until on or about 1620, 921115, a period of about 1 day, 9 hours, and 20 minutes .
 Award: Forfeiture of $392.00 pay per month for 1 month, extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
921203:  Applicant to pre-trial confinement.

 921210:  NJP for violation of UCMJ, Article 128: Assault, aggravated - inflicting grievous bodily harm . I n that W_, T_ G . (Applicant), SA, USN, did, on board USS SAVANNAH (AOR-4) located at NORSHIPCO, Norfolk, VA., on or about 921202, commit an assault upon SN C_, by choking him with his arms, a means like to produce grievous bodily harm, to wit: strangulation .
 Award: Restriction and extra duties for 10 days. No indication of appeal in the record.
921210 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense with a characterization of service as under other than honorable conditions .

921210 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
921217:  Applicant found medically qualified for separation.

 930121:  NJP for violation of UCMJ, Article 86: Absence from unit , in that W_, T_ G . (Applicant), SA, USN, did, on or about 0700, 930116, without authority, absent himself from his unit, to wit: USS SAVANNAH (AOR-4) located at Naval Station, Norfolk, VA., and did remain so absent until on or about 0730, 930116, a period of about 30 minutes .
 Award: Forfeiture of $200.00 pay per month for 1 month. No indication of appeal in the record.
930126 :  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and that such misconduct warranted separation . By a vote of 2 – 1, the Administrative Discharge Board recommended a characterization of service as u nder other than honorable conditions.
930127 :  Commanding Officer, USS SAVANNAH (AOR 4) recommended to Bureau of Naval Personnel (PERS-83) that Applicant be discharge d by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions. Commanding Officer’s comments : “ Concur with the findings and recommendations of the Administrative Board. Even though SR W_’s (Applicant) EAOS is 930208, it should not entitle him to an honorable discharge. SR W_ has been given more than ample opportunities to correct his shortcomings. He has been an administrative burden to this command and to the naval service. I strongly recommend expeditious separation from the military and that the char acterization for separation be U nder Other Than Honorable Conditions .”
930202 :  BUPERS directed the Applicant's discharge by reason of misconduct pattern of misconduct with a characterization of service as under other than honorable conditions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930205 by reason of misconduct due to a pattern of misconduct (A) 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 ( B and C ).

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 failed competency for duty exam due to alcohol intoxication, a retention warning and 6 nonjudicial punishment proceedings for violations of Articles 80, 86 and 128 of the UCMJ. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 80 and 128 are considered serious offenses and a punitive discharge is authorized 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. Relief denied.

The Applicant remains eligible for a personal app earance 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C . Secretary of the N avy 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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