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NAVY | DRB | 2006_Navy | ND0600370
Original file (ND0600370.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND06-00370

Applicant’s Request
The application for discharge review was received on 20060104 . 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 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 issue s, as stated on the application :
“ I am seeking Veteran’s Admin istration Benefits s o that I may obtain medical care at V.A. Medical Center .”
Applicant’s Remarks: (Taken from the DD Form 293 to the Board.):

“At the time of separation, I was 19 years old and was given the option to leave or most likely be facing a Dishonorable Discharge and felt at the time that separation was my only option. I had heard my whole life that a dishonorable discharge was the worst thing to ever be given. Had I known then what I know now, I feel that I might have made different decisions.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

Period of Service Under Review :
Date of Enlistment: 19900305             Date of Discharge: 19920624

Length of Service (years, months, days):

          Active: 0 2 00 00
         Inactive: 00 03 21

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

Age at Entry: 18

Years Contracted: 8

Education Level: 12                                 AFQT: 36

Highest Rate: AA

Final Enlisted Performance Evaluation Averages (number of marks):

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

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 w/Bronze Star, Sea Service Deployment Ribbon .


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 :

90062 5 :  Commenced active duty for a period of 36 months.

900628:  Applicant briefed on Navy's policy of drug and alcohol abuse.

901115:  DAPA Screening referral: This individual requires CAAC screening IAW reference (a) because of under age drinking, victim of assault while intoxicated 901105. BAC 0.12 .

920106:  NJP for violation of UCMJ, Article 86: UA from APD on 911225 .
Violation of UCMJ, Article 92: Failed to obey a lawful order from Commanding Officer by drinking alcoholic beverages under 21 years of age.
         Award: Forfeiture of $250.00 pay per month for 1 month , restriction and extra duty for 15 days, reduction to E-1 (suspended for 6 months) . No indication of appeal in the record.
920106:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86: UA from appointed place of duty on 911225 and Article 92: Failure to obey a lawful order from CO by drinking alcoholic beverages under the age of 21 years on 911225.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 920124:  Clinical Evaluation: AA V_ (Applicant) was evaluated at the Counseling and Assistance Center (CAAC) on 920123 at 0800 due to an alcohol related incident, under age drinking. He was returned to his division at 1045, following satisfactory participation.
         Recommendation:
          1 . CAAC Level II counseling program in the interim.
         2 . Command Level I Program.
         3 . Attend weekly meetings with command DAPA.
         4 . Attend four AA meetings per week to be monitored by the command DAPA.
         5 . Be held strictly accountable for his future actions on alcohol/drug use.
          AA V_ has potential for further productive service. He is amendable to the above recommendations.

920131:  Alameda Police Department, Alameda County Consolidated arrest report:
         Applicant was arrested on or about 910131 around 0045.
          Comments of Arresting Officer: DEF (Applicant) involved in a argument at Village Pizza. DEF showed obvious signs of INTOX, belligerent attitude, red watery eyes, odor of alcohol on breath / person. DEF unable to care for own safety or safety of others.
920203:  The suspended RIR to E-1 awarded at Commanding Officer’s mast held on 920106, is hereby vacated due to continued misconduct.

 920203:  NJP for violation of UCMJ, Article 92: Disobey a lawful order by drinking alcoholic beverages under the age of 21 years on 920131.
 Violation of UCMJ, Article 134: Drunk and disorderly on 920131.
         Award: Forfeiture of $392.00 pay per month for 1 month, restriction and extra duty for 20 days, reduction to E-1. No indication of appeal in the record.

920207:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct as evidenced by the commission of serious offenses.
920221:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
         Applicant objects to this separation.
920305:  NJP for violation of UCMJ Article 92: Disobeyed a lawful order by consuming alcoholic beverages while under the age of 21.
         Award: Forfeiture of $400.00 pay per month for 2 months (suspended for 6 months) and oral admonition. No indication of appeal in the record.
920313 :  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 commission of serious offenses and a pattern of misconduct.

920313 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
          Applicant objects to this separation.
920318 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of serious offense and misconduct due to a pattern of misconduct that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
920326:  Medical evaluation by Medical Officer.
 Applicant does not reveal evidence of psychosis or disabling neurosis at this time. He does not possess suicidal intentions. There is not sufficient evidence to warrant the behavioral term character disorder. Applicant does not require detoxification. Applicant is not dependent on drugs. Applicant is not dependent on alcohol. Applicant is probably not alcoholic but engages in ill-advised alcohol abuse. Applicant is recommended for further Naval service.
Comments: AR V_, would like to stay in the Navy until his 4 year enlistment has ended. There are no medical contraindications further Naval Service.

920403:  Commanding Officer, USS ABRAHAM LINCOLN (CVN 72), recommended to Chief of Naval Personnel that the Applicant be discharged under other than honorable conditions by reason of misconduct due to c ommission of serious offenses and a pattern of misconduct. Commanding Officer’s comments: “ AR V_ (Applicant) reported to this command on 901120 and proved to be a below average S ailor who repeatedly failed to maintain his personal behavior within acceptable standards. Despite repeated efforts to rehabilitate his alcohol pro blems, A R V_’s continued misconduct demonstrates his lack of desire to hold himself accountable for his own actions. AR V_ does not posses the potential for further useful naval service and I concur with the finding and recommendations of the Administrative Board, specifically that AR V_ receive an Other Than Honorable Discharge for misconduct due to commission of serious offenses and a pattern of misconduct.”
920507 :  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct (pattern) .

920611:  NJP for violation of UCMJ, Article 112a: Wrongful use of THC on or about 920529.
         Award: Forfeiture of $393.00 pay per month for 2 months, restriction and extra duty for 30 days.

920611:  Commanding Officer’s NJP held this date of forfeiture of $393.00 pay per month for 2 months (suspended for 6 months) awarded at Commanding Officer’s NJP 0f 920305 is hereby vacated.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19920624 by reason of misconduct due to a pattern of misconduct (A ) with a service 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 )

The Applicant desires an upgrade to Honorable. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Non judicial punishment proceedings on 19920106 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Failure to obey order;
•         Retention warning entry on 1992010 6 for deficiencies in performance and conduct concerning violation of UCMJ Articles 86 and 92;
•         Civilian Arrest on 19920131 for intoxication and belligerent attitude;
•         Non judicial punishment proceedings on 19920203 for violation of UCMJ Article 92 Failure to obey order and Article 134 Drunk and disorderly;
•         Non judicial punishment proceedings on 19920305 for violation of UCMJ Article 92 Failure to obey order; and
•         Non-judicial punishment proceedings on 19920611 for violation of UCMJ Article 112a Wrongful use of control substance.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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 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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