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NAVY | DRB | 2006_Navy | ND0600376
Original file (ND0600376.rtf) Auto-classification: Denied


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

ex-ATAR, USN
Docket No. ND06-00376

Applicant’s Request
The application for discharge review was received on 20060111 . 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 General (Under 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:
“Upon honorably and proudly serving the majority of my enlistment I was unwillingly discharged for misconduct. While the United States Navy concluded I was unfit for duty I feel I am entitled to the Montgomery G.I. Bill benefits to which I contributed $1200. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
         Applicant’s DD214 (Member 4)
         12 pages from Applicant’s service record book
         Applicant’s birth certificate (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990420 - 20000119       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 20000120              Date of Discharge: 20020517

Length of Service (years, months, days):

          Active: 02 0 3 28 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 6
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 74

Highest Rate: ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.5 ( 4 )     Behavior: 2.0 ( 4 )                 OTA: 2.7 0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon



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

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

011128:  Commanding Officer, Naval Hospital, Oak Harbor, informed Officer in Charge, AIMD, Naval Air Station, Whidbey Island, that the Applicant was evaluated at the Alcohol Treatment Program, Naval Hospital , Oak Harbor, following a referral by the DAPA due to an alcohol related incident. On 010913 the Applicant’s diagnosis was alcohol abuse.

011219:          Commanding Officer, Naval Hospital, Oak Harbor, informed Officer in Charge, AIMD, Naval Air Station, Whidbey Island, that the Applicant attended Outpatient alcohol core treatment at the ATP from 011203 to 031214 and, although, the member completed the Continuum of Care, regulations mandate the Applicant enter into aftercare.
020218:  Applicant medically evaluated for fitness for duty at 0830. Applicant directed to be sick-in-quarters (SIQ) until 1800.

 020319:  NJP for violation s of UCMJ, Article 86: Absence without leave (3 specification s ) on 020218, 020219, 020311. Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer on 020219. Article 92: Failure to obey order or regulation on 020219.
 Article 134: Drunkenness/incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug on 020218. A ward: Forfeiture of 7 days pay per month for one month, reduction an d 1 4 days extra duty. No indication of appeal in the record.
020320 :  Retention Warning: Advised of deficiency ( NJP on 020319 for VUCMJ, Article 86 (3 specifications ) (unauthorized absence), Article 91 (disobeying a lawful order from a CPO), Article 92 (dereliction of duty) and Article 134 (incapacitation for performance of duty. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020329:  Applicant to unauthorized absence.
020422:  Applicant from unauthorized absence.

020430 :  NJP for violation of UCMJ, Article 86 : Unauthorized absence (3 specification) on 020328, 020329 to 020422, 020423. Article 92 : Failure to obey order or regulation on 020327. Article 107 : F alse official statements on 020326. Award: Forfeiture of 7 days pay per month for one month, reduction and 14 days extra duty. No indication of appeal in the record.
020430 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct – pattern of misconduct, misconduct – commission of a serious offense and alcohol abuse rehabilitation failure.

020430 :  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.

020506 :  Officer in Charge, Aircraft Intermediate Maintenance Detachment, Whidbey Island, recommended discharge with a general (under honorable conditions ) character of service by reason of misconduct – pattern of misconduct, misconduct – commission of a serious offense, and alcohol rehabilitation failure. Commanding Officer’s comments: “ During [Applicant’s] tenure at AIMD, he has been a serious administrative burden to his co-workers and chain-of-command. He has consistently failed to maintain even the most minimal standard of performance or conduct. On 020319 , [Applicant] was awarded nonjudicial punishment for several period s of unauthorized absences, disobeying lawful orders from senior petty officers, dereliction of duty and being disrespectful to seniors and subordinates. He received an administrative counseling warning on 020320 to afford him an opportunity to overcome his deficiencies in his performance an d conduct. Unfortunately, it had no effect as [Applicant] continue s to display substandard performance and conduct as evidenced by his second nonjudicial punishment awarded on 020430 for the exact same offenses he was charged with at his first nonjudicial punishment in addition to his recurring off-duty alcohol-related incidents.
         After careful consideration of [Applicant’s] performance and conduct at this command, and the recommendations of his chain of command, I have concluded [Applicant] exhibits no potential for further naval service and it would be in the best interest of the naval service to separate him. I strongly recommend separating [Applicant] for misconduct due to a pattern of misconduct with a general (under honorable conditions) discharge. ”

020510 :  Commanding Officer, Electronic Attack Wing, U.S. Pacific Fleet, directed the Applicant’s discharge with a general (under honorable conditions) character of service 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 20020517 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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 implies that his discharge was inequitable because he served “honorably and proudly” for the “majority” of his enlistment. 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 or general 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 two nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 107 and 134 of the UCMJ. The Applicant committed violations of Articles 91, 92 and 107 of the UCMJ which are serious offenses. The commission of a serious offense is punishable by punitive discharge if adjuged as part of the sentence upon conviction at special or general court-martial. In addition to the Applicant’s misconduct, the Applicant was also an alcohol rehabilitation failure. 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 Applicant implies that his discharge is inequitable because it precludes him from receiving Veteran’s Administration benefits. 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 Veteran’s benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief on this basis would be inappropriate.

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), Change 18, effective
 12 Dec 1997 until 21 Aug 2002, 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 a n order/regulation or Article 107, false official statement.

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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